Milliken v The Queen
[2010] VSCA 243
•12 October 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2008 0987 |
| DANIEL PETER MILLIKEN |
| v |
| THE QUEEN |
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JUDGES: | ASHLEY, REDLICH and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 October 2010 | |
DATE OF JUDGMENT: | 12 October 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 243 | |
JUDGMENT APPEALED FROM: | R v Milliken (Unreported, County Court of Victoria at Geelong, Judge Nixon, 16 December 2008 (conviction)) | |
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Criminal law – Conviction – Sexual penetration with a child under the age of ten years – Indecent assault – Whether verdicts unsafe and unsatisfactory – Inconsistencies between complainant’s evidence and evidence called by defence – Whether verdict on counts of rape and sexual penetration inconsistent – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M D Stanton | Victoria Legal Aid |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
The applicant, Daniel Peter Milliken, a man now aged 42, was found guilty on 16 December 2008[1] of 4 counts of sexual penetration with a child under the age of ten years and 3 counts of indecent assault. The offences of which he was found guilty were committed on three occasions, not long apart, in the period between January 1984 and December 1985. The applicant was then aged between 15 and 17, whilst the complainant was aged between 7 and 9. On 18 December 2008, the applicant was sentenced to a total effective sentence of three years' imprisonment. The sentencing judge ordered that the sentence be wholly suspended for a period of three years.
[1]This was the applicant’s second trial. An earlier jury was discharged after it was unable to reach a verdict.
The applicant now seeks leave to appeal against conviction on the following grounds:
1.The verdicts are unsafe and unsatisfactory, particularly having regard to the inconsistencies between the complainant’s evidence and the evidence called by the defence.
2.The verdicts to counts 3 and 4 are inconsistent having regard to the evidence and the manner in which the trial was conducted by the prosecution and the defence.
Circumstances of the offending
The offences of which the applicant was found guilty were committed at Beech Forest where the applicant, with his brother, lived in a bungalow at the back of his parents’ home. The single complainant lived with his parents at Gellibrand.
The complainant used to visit Beech Forest with his parents. The applicant’s father was his uncle. The boys’ parents used to have drinks together at the Beech Forest Hotel. The complainant and his parents would occasionally stay overnight at the Beech Forest home of the applicant’s parents. On such occasions, the complainant would sleep in the bungalow.
The complainant’s evidence was as follows: on the occasion of first offending, the applicant and the complainant were on their own in the bungalow. The applicant grabbed the complainant’s hand, put it on his penis, and had the complainant masturbate him (count 1, indecent assault). After a while, he asked the complainant to perform oral sex on him, and the complainant did so (count 2, act of sexual penetration, child under 10). A little later, the applicant turned the complainant around and inserted his penis into the boy’s anus. These circumstances gave rise to the alternative counts 3 (rape) and 4 (act of sexual penetration, child under 10). The applicant was found not guilty on count 3, but guilty on count 4.
A few weeks later, in the bungalow in similar circumstances, the applicant again grabbed the complainant’s hand, placed it on his penis and had the complainant masturbate him (count 5, indecent assault). At the applicant’s request, the complainant also performed oral sex on the applicant (count 6, act of sexual penetration, child under 10).
Around three weeks after the second occasion, there was a similar incident. The applicant made the complainant masturbate him, and suck his penis. Those events gave rise to counts 7 (indecent assault) and 8 (act of sexual penetration, child under 10).
The evidence in the trial was very short. Only three witnesses gave viva voce evidence: the complainant, the applicant, and the applicant’s mother. Other than that, a medical certificate was introduced by consent.
The applicant gave evidence at the trial. He said that his relationship with the complainant had always been normal and affable. He denied the allegations that he had sexually molested the complainant, saying that they were lies.
Ground 1
The complainant gave evidence that the incidents occurred. The applicant denied it. The complainant’s evidence was imprecise as to collateral detail – for instance, whether the bungalow in which the incidents allegedly took place was wired for electricity or not; but his accounts of the incidents themselves was, though succinct, not evidently improbable in the broad.
In support of ground 1, counsel for the applicant particularly relied on one aspect of the complainant’s evidence – that is, evidence to the effect that the applicant had not been circumcised. There was clear evidence – from the applicant, his mother and a medical clinic – that the applicant had been circumcised. Since the alleged offending involved the complainant on multiple occasions taking hold of the applicant’s penis, and putting it put in his mouth, it was contended for the applicant that the complainant’s erroneous evidence was such as to render the case one in which the jury must have been satisfied that there was reasonable doubt as to the applicant’s guilt.
The particular evidence ran this way:
What do you say about whether or not he was circumcised?---He wasn’t.
He wasn’t circumcised all right and how are you sure of that?
---Because he held his foreskin back when he made me suck on his penis.
You’ve got a vivid memory of that?---That is as much, I remember him holding onto his penis.
Yes, because the foreskin would keep coming down, is that what you say?---Yes.
That’s a specific matter that you remember?---Yes, I remember him holding, like, the skin back at the end of his penis.
This court is going to hear evidence that he was, in fact, circumcised within one month of being born, do you realise that?---Ahh, I didn’t realise that, no.
So he hasn’t got a foreskin, he didn’t have a foreskin then, I put to you?---Maybe not but, the way he was holding it looked like he did.
You specifically say that he was holding back his foreskin?
---Yes.
That must be wrong, mustn’t it?---No, he was holding the end of his penis, it’s the same thing, isn’t it.
You remember a foreskin though, don’t you?---I said he was holding back the end of his penis.
I’m sure he had to hold his foreskin back while I was doing it?---Yes, that’s what I said, it’s the same thing.
Further in support of ground 1, the applicant relied upon (1) the absence of any contemporaneous complaint; (2) the fact that the complainant had put himself into the situation, after the first alleged incident, where the alleged misconduct could be repeated; (3) the fact that the applicant and complainant had socialised together in later years, a fact which the complainant tended to downplay; (4) the fact that the applicant and complainant had worked for the same employer for a period; and (5) the fact that, the complaint being late made, the applicant was unable to give any detailed rebuttal of the allegations.
I am not persuaded that the matters upon which the applicant relied, individually or in combination, create a necessary doubt. The complainant’s evidence about the applicant having not been circumcised is somewhat troubling. But that evidence was less than certain when read overall and I think that the jury, having had the opportunity to hear and see the complainant give all his evidence, was entitled to regard the particular evidence as reflecting the imprecise recollection of a boy aged between 7 and 9 years at the relevant time giving evidence long after the event. As to the other matters, they might have caused a jury to doubt the guilt of the applicant; but they cannot be said, in my view, to mandate a reasonable doubt of guilt. In all, there was, in my view, no feature in this trial which would require this Court's assessment of the complainant's credibility to prevail over that of the jury.
Ground 2
On the count of rape, the learned trial judge identified the critical issue as being whether the applicant’s penis had penetrated the complainant’s anus. Although the Crown had to prove absence of consent and knowledge that the complainant was not consenting or awareness that he might not be consenting, the real issue, his Honour told the jury, was whether the incident occurred at all.
So far as the offence of sexual penetration of a child under 10 is concerned, his Honour directed the jury that the elements were: (1) the act of penetration; (2) intention to do the act; and (3) the complainant then being under 10 years of age. His Honour noted that consent was irrelevant.
There is no question that his Honour’s description of the elements of the two offences was accurate.
The jury found the applicant not guilty of rape but guilty of sexual penetration. This means that it found the issue of penetration, which was the cornerstone of the rape count, against the applicant. Unless the verdict on count 3 is to be explained as merciful because the jury found the count of sexual penetration proved, it could only have acquitted on count 3 if not satisfied that the complainant was not consenting or if not satisfied that the applicant did not know that the complainant was not consenting or was not aware that he might not be consenting - although that was not the basis upon which the trial was conducted.
In this Court, counsel for the applicant submitted that counts 3 and 4 should not have been left to the jury. The case with respect to the particular incident was, as the prosecutor had stated at the outset of the first, abortive trial ‘really … either rape or nothing’.
Counsel further submitted that the verdicts were an affront to logic and common sense. They suggested compromise or confusion. No reasonable jury could have arrived at the conclusion reached. The verdicts represented a substantial miscarriage of justice.
Counsel for the Crown submitted that the issue of consent remained alive in respect of the rape count. So did mens rea. The jury had to deal with each of those issues. The judge had instructed the jury that if it was not satisfied of guilt on count 3, then it should go on to consider count 4. He had explained the different elements of the two counts. No exception had been taken, and understandably so. Why would counsel for the applicant have shut out the possibility of his client being found guilty of the lesser offence constituted by count 4? The verdict was explicable either because the jury might not have been satisfied that the applicant knew that the complainant was not consenting, or aware that he might not be consenting. It might not have been so satisfied because the complainant had been apparently compliant in the case of the earlier sexual acts. Alternatively, counsel submitted, the verdict was explicable as a merciful verdict.
In my opinion, counsel for the Crown was correct in the explanation which he offered why no objection was taken to counts 3 and 4 being left to the jury. He was also correct, I consider, in his submission that there was no logical inconsistency in the verdicts. It was, in my view, open to the jury on the count of rape to be not satisfied that the complainant had not consented to the penetration, and also as to the applicant’s mens rea, notwithstanding that neither issue was the focus of the defence. The complainant had been compliant in the earlier sexual acts and he had not objected to turning his back to the applicant and getting onto his hands and knees. The jury was not obliged to accept his evidence that he had cried out when the applicant penetrated him; or, if he did cry out, that the applicant had not immediately desisted. Further, the Crown did not advance its case on rape on the footing that the applicant continued to penetrate the complainant after the complainant had evidenced lack of consent.
The case is thus not one in which the verdicts on counts 3 and 4 could not stand together in the sense that ‘no reasonable jury who applied their mind properly to the facts in the case could have arrived at the conclusion’.[2] As this Court said in R v JA:[3]
Due to the respect accorded to the jury’s traditional function, courts hesitate to reach a conclusion of inconsistent verdicts, and will avoid it if there is a proper way to reconcile the verdicts. Similarly, where there is some evidence to support the verdict said to be inconsistent, ‘it is not the role of the appellate court…to substitute its opinion of the facts for one which was open to the jury.’ If the outcome is explicable as a merciful verdict,
intervention will not be justified.[4]
[2]R v Stone, (UKCCA, unreported, 13 December 1954, Devlin J), cited in Mackenzie v The Queen (1996) 190 CLR 348, 366.
[3][2008] VSCA 169 [48].
[4]Footnote omitted.
Conclusion.
It was said for the applicant below that in consequence of these matters he now lived like a hermit. If that is still the situation, it would be a very high price to pay for what might be regarded as adolescent sexual experimentation – conduct which, albeit criminal, he has not repeated as an adult. But whatever sympathy one might feel for the applicant – which is not to downplay the distress suffered by the complainant – it is not open to the court to deal with this matter other than strictly according to its legal merit. I would refuse the application for leave to appeal against conviction.
REDLICH JA:
I agree.
HARPER JA:
I agree.
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