Pell v The Queen
[2011] VSCA 235
•15 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0172
| NEVILLE PELL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WARREN CJ, TATE JA and WHELAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 3 August 2011 |
| DATE OF JUDGMENT | 15 August 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 235 |
| JUDGMENT APPEALED FROM | Unreported, County Court of Victoria, Judge Taft, 1 March 2010 (Sentence) |
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CRIMINAL LAW – Application for leave to appeal conviction – Act of sexual penetration with a person with a cognitive impairment by a worker at a facility – Four counts on presentment – Applicant convicted at trial on two counts and acquitted on two counts – Whether verdicts were unsafe and satisfactory – Whether guilty verdicts were inconsistent with not guilty verdicts – Leave refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D P Moen | Michael J Gleeson & Associates |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ:
I have had the benefit of reading the draft judgement of Whelan AJA and agree with his Honour’s reasons.
TATE JA:
I agree with Whelan AJA.
WHELAN AJA:
Neville Pell was charged with four offences under s 52 of the Crimes Act 1958, whereby workers at facilities for people with a cognitive impairment are prohibited from taking part in an act of sexual penetration with a resident at that facility.
The resident concerned is a male born in 1980, who suffered a significant cognitive impairment as a consequence of a motor vehicle collision in 2000. I will refer to him as ‘the resident’. Mr Pell worked at a facility at which the resident was living in 2007 and 2008 as a carer.
The resident gave evidence at a special hearing on 1 and 2 December 2009 before Judge Taft in the County Court. The resident’s evidence in chief at the special hearing was constituted by the adoption of video audio taped evidence (‘VATE’) of an interview which had been conducted on 3 July 2008.
On 3 December 2009 Mr Pell was arraigned before a jury panel and pleaded not guilty on all counts. On 11 December 2009 the jury returned verdicts of guilty on two counts and not guilty on two counts. Mr Pell was sentenced on 1 March 2010. On 25 May 2010 Mr Pell applied for an extension of time within which to lodge an application for leave to appeal against his convictions. He was granted an extension of time.
There are two grounds of appeal: that the two verdicts of guilty are unsafe
and unsatisfactory, and that the guilty verdicts are inconsistent with the not guilty verdicts.
The specific charges against Mr Pell were, in summary, the following:
Count 1:Between 9 December 2007 and 5 June 2008, an act of sexual penetration constituted by introducing the penis of the resident into the mouth of Mr Pell.
Count 2:Between 6 June 2008 and 15 June 2008, an act of sexual penetration constituted by introducing the penis of the resident into the mouth of Mr Pell.
Count 3:Between 6 June 2008 and 15 June 2008, an act of sexual penetration constituted by introducing the penis of the resident into the anus of Mr Pell.
Count 4:Between 6 June 2008 and 15 June 2008, an act of sexual penetration constituted by introducing the penis of the resident into the anus of Mr Pell.
The applicable legal principles were not the subject of controversy.
In relation to the ‘unsafe and unsatisfactory’ ground, the principles are those set out in the decision of the High Court in M v The Queen,[1] as applied by Maxwell P in R v Vjestica.[2] The issue is whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt. This necessarily requires the Court to decide whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.
[1](1994) 181 CLR 487.
[2](2008) 182 A Crim R 350.
In relation to the inconsistent verdicts ground, the applicable principles are set out in McKenzie v The Queen.[3] In a case of what is asserted to be factual inconsistency arising in relation to verdicts upon different counts on one originating process, as is the position here, the appellant must satisfy the court that the verdicts cannot stand together, meaning that no reasonable jury who had applied their mind properly to the facts of the case could have arrived at that conclusion.
[3](1996) 190 CLR 348 (‘McKenzie’).
The resident’s evidence on the VATE was that there had been a sexual relationship between he and Mr Pell over a period of some months. During that time he said Mr Pell had ‘sucked him off’ on many occasions. He said there were two or three occasions of anal intercourse.
Count 1 concerned what the resident said was the first occasion upon which there had been oral sex. On the VATE, he suggested that had occurred at or near Arthur’s Seat on the Mornington Peninsula. Counts 2 and 3 concerned what the resident said was the first occasion of anal sex. On the VATE, he described that as occurring during a period when he was staying at Mr Pell’s house. His description was of oral sex being followed by anal sex. This was the conduct said to constitute counts 2 and 3. Count 4 was said to be the next occasion of anal sex. On the VATE, the resident said that also occurred while he was staying at Mr Pell’s house.
In the applicant’s written case in relation to the unsafe verdict ground it was submitted that it was not open for a properly instructed jury to be satisfied beyond reasonable doubt that the applicant was guilty on any count. It was submitted that this was so because the prosecution case on all counts relied on the evidence of the resident and that a conclusion of guilt was not open because the resident’s ability to recall the events was impaired by his brain injury, because he was a drug user, because his recollections of dates and times was vague and non-specific, because he had lied to police in the past and had a history of dishonesty, because of the timing and nature of his complaints, because his account of the nature of the sexual contact was unreliable, because he had consumed alcohol when the offences were alleged to have occurred, because he had not complained to people in authority at the time, because there was no other evidence of inappropriate behaviour by Mr Pell towards him, because the resident had been assessed by his treating psychologist, Associate Professor Brewer, as a poor historian with a tendency to confabulate, and because the resident has violently attacked Mr Pell.
In relation to the second ground, in the written case it was submitted that guilty verdicts on counts 2 and 3 were inconsistent with the acquittals on counts 1 and 4. It was submitted that all counts relied upon the evidence of the resident and that his evidence could not be ‘compartmentalised’.
In oral submissions counsel for the applicant argued the two grounds together, emphasising that the acquittal on count 4 was inconsistent with the convictions on counts 2 and 3 and demonstrated that the verdicts on counts 2 and 3 were unsafe and unsatisfactory.
The Crown submitted that count 1 could clearly be differentiated from counts 2, 3 and 4; and that counts 2 and 3 could also be differentiated from count 4. In relation to inconsistency, the Crown relied as a ‘fall back’ proposition on the observations in McKenzie to the effect that sometimes a jury might acquit even though a charge is technically proved because they take the view that justice is sufficiently met by convicting the accused of less than the full number of counts.
Given the nature of the submissions made, the Court requested the VATE and the audio visual recording of the special hearing. I have watched them in full. Transcript of the VATE and of the full trial were also available to the Court.
Before turning to the specific issues raised, something more needs to be said about the evidence and the trial.
There was evidence of potential significance other than the resident’s own account of what occurred. In relation to counts 2, 3 and 4 there was evidence from which it was open to the jury to conclude that Mr Pell had told a lie which constituted an unspoken or implied admission of guilt. In his record of interview Mr Pell had said that the resident had only visited his house once and had never stayed overnight.[4] It was open to the jury to conclude that this was a lie told because he was conscious of his guilt of counts 2, 3 and 4. It was not open to reach that conclusion in relation to count 1. The judge in his charge gave standard consciousness of guilt directions in relation to that matter[5] and emphasised that that consciousness of guilt reasoning could not be applied to count 1.[6] There was evidence which was independent of the resident which meant that it was open to conclude that he had stayed overnight at Mr Pell’s house on occasions in June 2008.
[4]Record of Interview, Questions 139, 140, 147, 151, 154 and 155.
[5]Transcript 361-368.
[6]Transcript 368.
There is no complaint about the judge’s charge but it is still relevant to record that in his charge the judge emphasised the need for separate consideration of the counts,[7] told the jury they could accept some or all or none of what any particular witness said,[8] addressed the issues of complaint and delay in complaining,[9] addressed the issue of the resident’s asserted bad character,[10] and addressed all of the factual matters raised by the evidence, including the evidence of Associate Professor Brewer as to the effect of the resident’s injury. Among other things the trial judge told the jury:
Before convicting Mr Pell, you should be satisfied beyond reasonable doubt that [the resident’s] evidence is honest, accurate and reliable.[11]
[7]Transcript 355-6.
[8]Transcript 357.
[9]Transcript 375-6.
[10]Transcript 378.
[11]Transcript 379.
Turning then to the VATE, the matters which seem to me to be significant are these:
(1)The resident was quick to accept, and to assert, that he was ‘not good’ with dates and days.[12]
(2)The resident gave an account of being ‘sucked off’ by Mr Pell on many occasions, but he was often unable to give specific detail, and in particular he was not completely sure that the first occasion was at Arthur’s Seat. This was the conduct said to constitute count 1.[13]
(3)The resident was able to give specific detail as to location, as to what was said by him and by Mr Pell, and as to the positions of both he and Mr Pell, on what he said was the first occasion when anal intercourse occurred.[14] This was the occasion upon which the conduct said to constitute counts 2 and 3 occurred.
(4)The resident’s description of the occasion or occasions of anal intercourse after the first one was not clear and lacked specific detail. He was unsure of the location, or of what was said. He described the event using expressions such as ‘probably’, ‘would have’, and ‘not sure’. He was unsure if there were two or three occasions of anal intercourse in total. He eventually said in relation to occasions of anal intercourse after the first one: ‘Don’t remember jack about it’.[15] This is the conduct alleged to constitute count 4.
[12]VATE Transcript Page 4 and 15.
[13]See page 5.
[14]Page 16-21.
[15]VATE Transcript Page 24.
In his cross-examination the resident was asked about an appearance at the Dandenong Magistrates’ Court in 1999, before his injury. He agreed that he had committed offences of theft and dishonesty. He agreed that he had lied in a police statement. He had been placed on a community based order. In re-examination he indicated that that had been without conviction.
The resident agreed in cross-examination that he had been an abuser of many illegal drugs prior to his accident, and he agreed that he had continued to use cannabis on a regular basis after his accident. He said he did this to relieve his pain as a result of other injuries he received in the accident. He agreed that he sometimes had problems with his memory.
He was asked at length about problems he had had with staff and residents at the facility where he was living at the time of the alleged offences and at other facilities where he had lived. He was asked about the fact that he had not complained about Mr Pell to his mother, to staff, or to psychologists, before he had a physical confrontation with Mr Pell at his mother’s house.
He was challenged about the evidence he gave of repeated ’head jobs’, but he was not challenged about such detail as he had given in relation to the anal sex allegations. It was put to him that he had not had a sexual relationship of any kind with Mr Pell.
The only prior inconsistent statement which was put to the resident was what was said to be an inconsistent complaint made to a psychologist, Ms Helen Barnacle. The inconsistency which was asserted in the resident’s cross-examination was that his complaint to Ms Barnacle had been to the effect that there had only been one occasion of anal intercourse. When Ms Barnacle herself gave evidence she said that she had not asked him how many times anal intercourse had occurred and that the only issue of concern to her was his response to having had anal intercourse with a male.[16]
[16]Transcript 295.
Having viewed the resident’s evidence, and having considered the submissions made about that evidence on behalf of the applicant, my conclusion is that whilst it was open for the jury to have rejected his evidence, it was also open for them to have accepted it.
Further, it seems to me that it was open to the jury to differentiate between the evidence he gave concerning the various counts.
Count 1 was distinct from counts 2, 3 and 4. It was not alleged that that conduct had occurred at Mr Pell’s house. The evidence the resident gave about count 1 was not specific and he did not express himself to be completely sure where it had occurred. That was also the earliest alleged incident, so that the issues raised about delayed complaint might have seemed to have more cogency there than in relation to the incidents in June 2008 which were the subject of counts 2, 3 and 4 and which were proximate to a complaint made by the resident to his mother.
It was also open to the jury to distinguish count 4 from counts 2 and 3. The description the resident gave of the conduct constituting counts 2 and 3 contained an amount of detail which was lacking from his account of the conduct alleged to constitute count 4. It was indeed open to conclude that in the VATE the resident had eventually said that he had little recollection of the count 4 incident.
Even if one accepted the applicant’s evidence in full, the verdicts are still both understandable and justifiable. The jury might, of course, have rejected certain parts of the resident’s evidence. It seems to me that it was certainly open for the jury to conclude that the resident’s evidence about the events constituting counts 2 and 3 was more reliable than his evidence about the events constituting counts 1 and 4.
I am also unpersuaded that the evidence of Associate Professor Brewer renders the verdicts unsafe and unsatisfactory, or inconsistent.
In evidence in chief Associate Professor Brewer described the resident’s injury, stating that he was a person with a significant cognitive impairment.[17]
[17]Transcript 315-316.
In cross-examination Associate Professor Brewer agreed that he had concerns as to the resident’s continuing cannabis use and agreed that the resident had significant ongoing cognitive difficulties.[18] He said that in his opinion, prior to the accident the resident’s general intellect had been at the low end of average and that the injury he suffered had reduced his IQ by about 30 percentile points.[19] He expressed the opinion that the resident’s verbal memory was very poor but that his ‘working memory’ remained ‘relatively intact’.[20] He said that the resident did not have difficulties with his longer term memory; long term in this context being potentially as short as a day.[21]
[18]Transcript 317-8.
[19]Transcript 318.
[20]Transcript 319.
[21]Transcript 321.
In an earlier written report Associate Professor Brewer had described the resident as a ‘poor historian’. In cross-examination when asked about this, Associate Professor Brewer said that he had described him in that way because the resident was more inclined to remember events which were emotionally arousing than mundane issues, such as how much cannabis he had used and interactions with staff at the residential facility.[22] When asked whether lay people would have difficulty determining whether the resident was accurate or not, he responded: ‘I don’t think so. He is generally a reasonable historian’.[23]
[22]Transcript 323.
[23]Transcript 323.
Associate Professor Brewer was also asked about a statement in his written report that the resident had a ‘tendency to confabulate’. He said that what he was referring to was a tendency to fill in details between clear memories so as to make a coherent story.[24] Associate Professor Brewer said that if the resident is being asked to remember events which are emotional he is more likely to remember.[25] He also said that the resident’s ‘delivery’ of what he remembered might be unpredictable if his emotions got the better of him.[26]
[24]Transcript 326.
[25]Transcript 327.
[26]Transcript 327.
These were all matters properly to be put before, and considered by, the jury; and they were. The trial judge in his charge reminded them of what Associate Professor Brewer had said.[27] Associate Professor Brewer’s evidence did not require a conclusion that the resident’s evidence was to be rejected. It may have been seen as fortifying a conclusion that the resident’s recollection on counts 2 and 3 was more reliable because of the detail he could give of what he said had occurred on that occasion.
[27]Transcript 387-8.
My conclusion is that the jury verdicts on all counts were both understandable and justifiable.
Neither ground of appeal is made out. The application should be refused.
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