R v Abela
[2007] VSCA 22
•28 February 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No. 166 of 2005 |
| v | |
| IVAN ABELA |
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JUDGES: | NETTLE and NEAVE JJA and KING AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 November 2006 | |
DATE OF JUDGMENT: | 28 February 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 22 | |
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CRIMINAL LAW – Rape – Conviction – Evidence – Propensity evidence – Whether just to admit evidence of prior sexual attack on complainant’s daughter – Complaint – Post-offence conversation – Whether capable of constituting evidence of complaint – Jury directions – Whether judge erred in inviting jury’s attention to stress to which complainant may have been subject in giving evidence – Crimes Act 1958, s 398A.
Criminal law – Rape – Sentencing – Concurrency – Totality – Prospects of rehabilitation – Manifest excessiveness – Appeal allowed – Appellant re-sentenced to five years and six months of which one year and three months to be served concurrently with prior sentence of three years , with a non-parole period in respect of all sentences remaining to be served of five years – Sentencing Act 1991, s 14(1)(b).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr O P Holdenson QC | Ms A Cannon |
| For the Applicant | Mr C B Boyce | Victoria Legal Aid |
NETTLE JA:
I have had the advantage of reading in draft the reasons for judgment of Neave JA and I agree with her Honour that the application for leave to appeal should be refused but that the application for leave to appeal against sentence should be allowed.
Appeal against conviction
So far as the appeal against conviction is concerned, it appears to me that the only question of substance is whether judge erred in admitting evidence that the applicant sexually attacked the complainant’s daughter on the evening before he was alleged to have raped the complainant.
Under s 398A of the Crimes Act 1958, propensity evidence that is relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence. As the authorities show, that means that such evidence will not ordinarily be regarded as admissible unless the evidence has strong and cogent probative force beyond proof of disposition.[1]
[1]R v Best [1998] 4 VR 603 at 611; R v Tektonopoulos [1999] 2 VR 412 at 416 [18]-[21]; R v Dupas (No 2) (2005) 12 VR 601 at 610 [22]-[26].
Plainly enough, the evidence of the applicant’s attack on the complainant’s daughter was relevant to the issues of whether the complainant consented to sexual intercourse and of whether the applicant was aware that the complainant was not consenting or might not be consenting to intercourse. Common sense dictates that a woman would be less likely to consent to sexual intercourse with a man if she knew that he had attacked her daughter the day before and equally that a man would more readily comprehend that the woman was not consenting if he knew that she knew that he had attacked her daughter the day before.
But, equally plainly, the evidence was highly prejudicial, in that it revealed other criminal conduct of a kind that was similar to the conduct the subject of the charge, and therefore revealed a propensity to commit sexual offences of the kind the subject of the charge. Faced with that evidence, and subject to the effect of appropriate directions, the jury were more likely to reason that, because the applicant committed a sexual attack on the complainant’s daughter the day before the alleged offence of raping the complainant, it was probable that he had indeed committed the offence of raping the complainant.
Given the nature of the alleged offence and the nature of the evidence, I was for a while attracted to the idea that the judge had erred in the application of s 398A. Apart from anything else, his Honour did not refer to any of the relevant authorities or otherwise demonstrate that he had decided the issue in accordance with correct principle. But, on reflection, I am persuaded that the evidence had such a high degree of cogency and probative force as to exceed its prejudicial effect and therefore that, whether or not the judge decided the issue in accordance with correct principle, his Honour was correct to admit it.
In effect, the only issue in the case was whether the complainant consented (or whether the applicant might have thought that she consented) and, since the complainant was the applicant’s domestic partner and was known to have had consensual sexual intercourse with the applicant on previous occasions, any exploration of that issue was bound to excite the question of why the applicant would have withheld consent (or why the applicant should be taken to have known that she had withheld her consent) on the occasion in question. The context in which the sexual intercourse occurred was, therefore, critical to the resolution of that question, and the events of the previous evening, and their likely effect on the relationship between the applicant and the complainant, were critical to the context.
In the language of the authorities, I consider that the evidence of what occurred on the previous evening had “a really material bearing on the issues” or
was so relvant that to exclude it would have been “an affront to common sense”. [2] It follows in my view that it was “just” to admit the evidence despite its prejudicial effect.[3]
[2]Markby v The Queen (1978) 140 CLR 108 at 117; R v Dupas (No 2) (2005) 12 VR 601 at 622[67].
[3]See and compare R v Debs and Roberts [2005] VSCA 66 at [9]; R v Dupas (No 2) (2005) 12 VR 601 at 612[33]-[37]; R v LRG [2006] VSCA 288 at [36]-[37].
As Neave JA explains, the judge took care to direct the jury as to the limited purpose for which the evidence was admitted,[4] and his Honour expressly warned the jury that they were not to reason that, because the applicant committed an attack on the complainant’s daughter, he was the kind of man who was likely to have committed the offence on the complainant with which he was charged. With respect, I consider that those aspects of his Honour’s directions were unexceptionable.[5]
[4]In accordance with BRS v The Queen (1997) 191 CLR 275 at 305; see also Gipp v The Queen (1998) 194 CLR 106 at 132 [77].
[5]See R v TJB [1998] 4 VR 621 at 629-633; R v DCC (2004) 11 VR 129 at 134[14].
Appeal against sentence
I agree with Neave JA substantially for the reasons that she gives, that the applicant for leave to appeal against sentence should be allowed, and I concur in the disposition of the appeal which her Honour proposes.
NEAVE JA:
The applicant was convicted by a jury of one count of rape, and sentenced to six years’ imprisonment, with a non-parole period of four years and six months. He now seeks leave to appeal against his conviction and sentence.
The facts
The complainant was the applicant’s de facto wife, with whom he had been living since 1997. She had two children from an earlier relationship and one child with the applicant.
On the evening of 23 July 2003, the complainant, the applicant and Mr Kontic, a young man who worked for the applicant, were at home with the children. While the complainant and Mr Kontic were talking in the kitchen, they heard unusual noises coming from the bedroom of the complainant’s 12 year old daughter. The complainant and Mr Kontic investigated and found the applicant lying on top of his step-daughter, who was half naked. The complainant’s daughter later told her mother that she had been raped by the applicant.[6] That evening the applicant wanted to sleep in the matrimonial bed with the complainant, but the complainant refused. As a result the applicant slept on the couch in the living room.
[6]The applicant pleaded guilty to two charges of attempted incest arising from this conduct.
In his sentencing remarks the learned trial judge found that the complainant was “significantly afraid” of the applicant. Following her discovery and the conversation with her daughter the complainant decided that she would not directly accuse the applicant of sexually assaulting his stepdaughter. Her evidence was that she decided to “go along that night as if things were normal,” and that she would report the applicant to the authorities the following day (24 July 2003) “when it was safe”.
The complainant knew that a medical practitioner was legally obliged to report the sexual abuse of a child to the responsible authorities, so she devised a plan to take the child to the doctor the following day, on the pretext of seeking treatment for the child’s stomach pains.
The following day the children went to school. The applicant did not go to work. The complainant told the applicant she had to take her daughter to the doctor because she was complaining of stomach pains. The applicant said he would go to the school and tell the child about the appointment. He came back saying that she did not want to go to the doctor, but the complainant insisted that she should go.
Mr Kontic left the house at about 2 pm that day at the request of the applicant, who told him to return at 3 pm. This left the applicant and the complainant alone in the house.
The applicant said that he wanted to talk to the applicant and that he wanted to make love to her. She replied that she did not want to, as she had her period. The complainant gave evidence at the trial that she did not want to make love to the applicant, because she thought he had assaulted her daughter the evening before.
The complainant went into the bedroom and was followed by the applicant. She walked out to the kitchen, but the applicant led her back into the bedroom. He again said he wanted to make love to the complainant. Her evidence was that she said to him “I don’t want this”. She also said that she told him more than three times that she did not want to have sex, but that he persisted. At some stage the phone rang and the applicant answered it.
While the applicant was on the phone, the complainant got into the shower because she was going to the doctor. She believed that the applicant would not pursue her while she was showering. The applicant opened the shower door and grabbed her firmly by the hand. Once again, she said “no”. The applicant led her out of the shower and dried her with a towel. She said again that she did not want to have sex with him. The complainant’s evidence was that she tried everything to avoid having sex with the applicant but that she was scared of him and so did not physically resist.
The applicant lay directly on top of the complainant, attempting to kiss her. She attempted to avoid being kissed, by turning her head from side to side and she continued to say “no”. The applicant pulled down the front of his tracksuit pants and placed his penis into her vagina. He ejaculated in her and then got off her. She returned to the shower, got dressed and took her daughter to the doctor.
When she was at the doctor’s rooms, the complainant informed the doctor of the sexual abuse of her daughter. The doctor alerted the authorities and the applicant was arrested when he came to the medical centre. The complainant gave evidence that she had told the police that she had been raped on that day.
On the following day (25 July) she gave a statement to Senior Constable Paula Sutherland about the sexual assault of her daughter. In the course of the interview she became upset and said she needed to tell Senior Constable Paula Sutherland something. She went on to say that the accused had raped her the day before. She was then taken to hospital for a forensic examination and the accused was later charged with her rape.
The complainant was medically examined on 25 July, the day after the alleged rape. The examination included the taking of vaginal swabs which were provided to the police at 3.10pm on that day. Ms Ryan, a forensic scientist employed at the Victoria Police Forensic Services Centre, testified that spermatozoa were detected on a microscope slide made from the high vaginal swabs and that the mixture of DNA typings obtained provided very strong support for the proposition that the complainant and the applicant contributed to the DNA material found on the swab. A full DNA profile obtained from a yellow towel, which the complainant said she had used to wipe herself after intercourse, matched the DNA profile obtained from the applicant’s reference sample.
Grounds of appeal against conviction
The grounds of appeal that were pursued in this application were that:
·Ground 1: The learned trial judge erred in permitting the prosecution to lead evidence of the applicant’s earlier sexual contact with his 12 year old step-daughter, such that the applicant was denied a fair trial.
·Ground 2: The learned trial judge erred in admitting evidence of a sexual assault by the applicant, committed upon his step-daughter, that occurred on 23 July 2003.
·Ground 3: The learned trial judge erred in his directions to the jury as to the evidence of the sexual assault that was alleged to have taken place on 23 July 2003 and, in particular, the use that could and could not be made of such evidence.
·Ground 4: The trial judge erred in his directions to the jury about the [complainant] being in a state of distress when giving evidence in the presence of the applicant.
·Ground 5: The learned trial judge erred in failing to discharge the jury after telling them in the course of his charge that the complainant would understandably be a nervous witness, particularly having to give evidence in the presence of the applicant.
·Ground 6: The learned trial judge erred by telling the jury that in this case there was “absolutely no evidence whatsoever” that the complainant initiated sex with the applicant.
·Ground 9: The learned trial judge erred in admitting the complaint’s evidence of the witnesses Kontic and Sutherland.
·Ground 11: The verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.
In my opinion the appeal should be dismissed. First I discuss my reasons for rejecting the applicant’s submissions in relation to grounds 4 to 6, and 9. I then turn to my reasons for dismissing grounds 1 to 3.
Grounds 4 and 5 — statements made by the trial judge about the complainant
In his charge to the jury his Honour commented as follows:
“In the present case you have the situation of [the complainant], a mother of a young daughter. She told you that from what she had observed on 23 July 2003 that she formed the view that her de facto husband was sexually abusing her young daughter. You may well consider, and I stress again that it is entirely a matter for you, but you may well consider that such a situation may have caused her, or indeed any mother, some considerable distress. Following upon that issue, the next day she alleges that she was herself raped by her de facto husband.
You may well think and I stress it is entirely a matter for you, that in having to come to this court and recount the events of 23 and 24 July 2003 might have resulted in [the complainant] being under a degree of stress in giving her evidence before this court, particularly in the presence of the accused man, Abela. If you were satisfied as to that factor, and I stress it is entirely a matter for you, but if you were satisfied as to that factor when assessing [the complainant] as a witness, or indeed any other witness, including for example, Mr Kontic, you may make allowance for that factor if you wish. Again I stress it is entirely a matter for you whether you make such allowance. Again I come back it really is just a matter of common sense that I know that you will apply.” (Emphasis added)
Following this direction defence counsel applied for a discharge of the jury on the ground that the judge’s reference to the complainant being under stress in the presence of the accused. Counsel submitted that this gave rise to an inference that the complainant was providing an accurate and truthful account in the presence of the perpetrator, in a way that suggested sympathy for the complainant. The application was refused by his Honour.
The applicant’s written outline of argument submitted that by making these comments the learned trial judge had wrongfully given “…the prosecution’s critical witness the stamp of judicial approval and, in so doing, gave her an aura of truth”.
In my opinion grounds 4 and 5 are not made out. The transcript shows that the complainant became distressed on a number of occasions while she was giving her evidence. It was not inappropriate for the trial judge to refer to matters which might affect the way in which the complainant gave her evidence. The jury directions did not suggest that the complainant had given a truthful account of what had occurred, or that the jury should sympathise with the complainant.
His Honour said on no less than four occasions that it was for the jury to consider whether the complainant’s distress was a matter to be taken into account in assessing her evidence. He also commented that other witnesses, including Mr Kontic, might have been under stress in giving their evidence, which would have removed any impression that his comments related only to the complainant.
I would therefore reject grounds 4 and 5.
Ground 6 — comments on the complainant’s evidence
In his charge to the jury, his Honour made the usual comment that questions put by counsel are not evidence and that the jury can only take account of the answers given to questions. He said
“Let me give you a simple example of what I mean when I say it is the answer that provides you with the evidence and not the question. From the present case, in cross-examination, Mr Cosgriff put to [the complainant] [sic] as you will recall. Question: “I suggest to you [the complainant], that the sex you had in your bedroom was initiated by you? Answer: That is incorrect.” Remember very clearly, it is the answer which provides you with the evidence and not counsel’s question. It follows from what I have said you might well think, that there is absolutely no evidence whatsoever in this case that it was [the complainant] who initiated sex in the bedroom. As I stress, of course, that is entirely a matter for you, but remember it is the answer which provides you with the evidence, and not the question.”
In the written outline of argument counsel for the applicant submitted that the comment made by his Honour “was calculated to entirely obliterate the applicant’s defence”. While his Honour could have said that the complainant gave no evidence that she had initiated sexual intercourse with the applicant, his comment suggested that there was no other evidence supporting the defence that the complainant had consented. It was said that although the applicant had denied that sexual intercourse had occurred in his police interview of 24 July, he answered a number of other questions in a way that gave circumstantial support to the defence case at trial that the complainant had pestered the applicant to have sex with her in the past and that she had initiated sex with the applicant on 24 July.
The questions and the answers given by the applicant in his police interview which were said to provide circumstantial support to the defence case were as follows.
Interviewer: Do you recall having sexual intercourse with [the complainant] [sic] on the afternoon before you took your daughter to the medical centre?
Applicant: No, I didn’t ….
Applicant:Before that day—whatever date it was—we didn’t have sex for three weeks—thereabouts.
Interviewer: Okay.
Applicant: And she used to always whinge about it.
Interviewer: Okay.
Applicant:And as a matter of speech — actually she wanted to give me horny goat weed, because I wasn’t giving her enough sex.
Interviewer Alright. So---?
Applicant: And yeah, that’s alright, sorry.
Interviewer: Are you saying that you didn’t have sex on the 24th of July?
Applicant: No, I didn’t.
Interviewer: And are you saying that before the 24th of July, the last time you had sex with [the complainant], was about three weeks before that?
Applicant: About that, yeah.
Interviewer: Okay
Applicant: There’s a doctor’s report—how she used to take me there and she used to whinge about my sex drive, and the doctor used to tell her it’s part of my — of the medication that I’m on.
Interviewer: Okay.
Applicant:Used to tell her it all, like, I dunno if the doctor’s writ [sic] it down, but she’s—always used to whinge.
Interviewer: Is it possible that you’re confused?
Applicant: No. No. Not about that.
Interviewer: Alright.
Applicant:I remember one thing in the morning, that when I woke up….
Interviewer: Yeah
Applicant:Which has happened more than – practically every second day, she used to say to me, ‘Did you feel what I did to you last night?’ and I used to say ‘no.’ Sometimes I used to wake up and I used to say to her, ‘what are you doing?’ – 2 o’clock in the morning, ‘cos I’ll be asleep. She used to take – try take control. I used to say, ‘just get off, I’m tired.’ Most of the time I didn’t feel – I dunno, she used to say to me, ‘I went down on you,’ and I didn’t know.
Interviewer: Alright. How often did that happen?
Applicant:Practically every second – third night. When I realised I used to say to her, ‘leave me alone when I’m asleep’. And she always used to say to me, ‘we got to make a night so we can have an intimate night’ because I had the problem of having sex.
Interviewer: Nevertheless, before the 24th of July, you probably hadn’t made love for about - - - ?
Applicant: 3 weeks.
Interviewer: 3 weeks.
Applicant: Give and take.
Interviewer: Just that point you just made there about what [the complainant] did to you during the night, that’s on the morning - is –is this the particular morning that Senior asked you about, you’re going to the ---?
Applicant: Yes.
Interviewer: Medical Centre?
Applicant:It was the next morning, I remember, I actually slept in the lounge that night.
Interviewer: So, when you woke and said this to you, where was she sleeping?
Applicant: She actually slept in the bedroom, as far as I know.
Interviewer: So, this would’ve—these events have taken place in the lounge?
Applicant:Yeah, well she came in the lounge—because I woke up and I said “Who put the blanket on me,” and Chris Kontic said Maria.”
The defence case at trial was that the complainant initiated sex with the applicant, or at least consented to it and had later fabricated the allegation of rape in order to shore up her claim that the applicant had sexually assaulted her daughter. It was said that the answers given by the applicant in his police interview gave circumstantial support to the proposition that the complainant was likely to have initiated sex with the applicant and that his Honour had erred in saying that there was no evidence that she had done so.
It would have been preferable for his Honour to use a more neutral example to illustrate his comment that the jury must consider the answer to the question put to the witness. In my opinion, however, this ground of appeal is not made out. In the comment extracted above his Honour made it abundantly clear that it was for the jury to consider whether there was any evidence that the complainant had initiated sexual activity with the complainant.
Elsewhere in his directions he reminded the jury that
“any comment that I might make about the facts, as distinct from directions of law, is an entirely like position to that of counsel. You can accept or reject any observations that I might make about the facts. It is your judgment which is required here and not mine and no one must usurp your most important role.”
and that
“the facts, the assessment of the witnesses, the judgment of what the evidence shows, the conclusion to be drawn from the evidence are all matters for you and not for me to determine … Because I choose to mention some part of the evidence and not another should be given no importance by you.”
His Honour also drew the jury’s attention to matters put in defence counsel’s closing address which were said to make it improbable that the accused would have forced the complainant to have sex with him.
I also reject the proposition that his Honour erred in saying that there was no evidence before the jury that the complainant initiated sex with the applicant on 24 July. In his police interview the applicant denied that they had had intercourse on that day and said that they had not had sex for three weeks.
The defence case at trial was that sex occurred with the complainant’s voluntary agreement. The only evidence as to the circumstances in which the particular act of intercourse occurred was given by the complainant. It is useful to set out the answers she gave in cross-examination.
Counsel:I suggest to you… that the sex that you had in your bedroom was initiated by you?
Witness: That is incorrect.
Counsel:You came out of the shower and commenced to fellate him. Do you know what that means?
Witness: Can you please reword that.
Counsel:You came out of the shower and effectively went down on him?
Witness: That’s incorrect.
His Honour: You probably better explain what you mean by getting down on him in view of the word you used in the question prior to that.
Counsel:You had his penis in your mouth?
Witness: No.
…
His Honour: …We understand the difficulty that anybody has talking about these things but counsel has a job to do. He must do his job and you have said that you didn’t do that?
Witness:No.
Counsel:I suggest that after that… that you [the complainant] then had consensual sex, penis - the normal sex with the penis and the vagina involved until such time as he ejaculated inside you - consensual I mean?
Witness: No.
Shortly afterwards his Honour sought to clarify whether the witness had said she did not consent and the witness said “no”.
The applicant stood mute at trial. In his police interview he denied that he had had intercourse with the complainant on 24 July and said that the last time he had done so was about three weeks before that date. Given that denial, his answers to police suggesting that the complainant had frequently tried to persuade him to have intercourse with her in the past cannot be regarded as circumstantial evidence that she had consensual intercourse with him on 24 July. This amounts to an assertion that because the complainant had initiated sexual contact in the past, she must necessarily be regarded as having agreed to intercourse on the particular occasion. This is no longer the law in Victoria, if it ever was. Section 37(1)(b) of the Crimes Act 1958, provides that if it is relevant to the facts in issue in a proceeding the judge must direct the jury that
“(b)a person is not to be regarded as having freely agreed to a sexual act just because
(iii)on …an earlier occasion she…freely agreed to engage in a sexual act…with that other person...”
The defence was, of course, entitled to put the Crown to proof that the complainant did not voluntarily agree to intercourse with the accused on 24 July. A jury might have reached the conclusion that there was a reasonable doubt about whether sex occurred without the complainant’s voluntary agreement. However his Honour did not err in saying that there was no evidence that the complainant initiated sexual intercourse with the applicant.
I would therefore reject this ground of appeal.
Ground 9 — admission of evidence of “complaint”
The applicant originally complained about the admission of evidence of a complaint of rape made by the complainant to Mr Kontic and to Senior Constable Paula Sutherland. Mr Boyce abandoned the submission that the complainant’s statement to Senior Constable Sutherland was inadmissible as evidence of recent complaint, but maintained that Mr Kontic’s evidence should not have been admitted because it was not a complaint, but a question.
Mr Kontic’s evidence was that he had a conversation with the complainant in the car park outside the Melton Police Station on the same day that the applicant was arrested. He was asked by counsel for the prosecution if he had had a conversation with the complainant and what had been said. His evidence was that
“[the complainant] confronted me and asked me, if Ivan had forced her to have sex is that classified as rape, and I said yes.”
At the trial defence counsel submitted that this should not be admitted as recent complaint evidence, because it did not contain an assertion that the act had occurred. His Honour said that
“I suppose the inference that Mr Kontic could take from that is that Ivan had had sexual [sic]with her against her will.”
Counsel for the applicant then said
“It can be construed in more than one way, I suppose.”
His Honour ruled that it was a matter for the jury whether the complainant’s question amounted to a complaint. Mr Boyce submitted that his Honour should not have left this question to the jury.
In R v Freeman[7] the Full Court ( Starke, McInerney and Murphy JJ) said that
“The ultimate question must always be does the “complaint”, in the circumstances in which it was uttered, tend to buttress the prosecutrix’s credit as a witness.
This is, of course, a jury question, and that question can only arise if the trial Judge has first determined to admit the complaint. That decision involves the formation by the trial judge, on the facts as they appear on the evidence then before him, and the facts of the complaint emerging from the proffered evidence, of a judgment whether the complaint is capable of being regarded by the jury as being a spontaneous account by the prosecutrix of the incident the subject matter of the charge.”
[7][1980] VR 1 at 5.
While this statement supports the submission that it is for the judge to determine whether the complaint should be admitted, it is clear that the issue in Freeman was not whether what the woman said amounted to a complaint at all, but whether it satisfied the requirements of a “recent complaint” because it was spontaneously made at the first reasonable opportunity.
Cross on Evidence states that:
“It is for the judge to determine whether the statement is capable of being a complaint and meets the conditions for admissibility; it is for the jury to determine whether it is in fact a complaint.”[8]
[8]At [17285].
This view has been accepted in South Australia[9] and applied in New South Wales[10] and Queensland.[11] In the New South Wales case of Manwaring the complainant had returned home after being taken away by the alleged offenders and asked her boyfriend “Do you know what has happened to me?” The Crown case was that she had previously been forcibly placed in a car screaming, in the presence of the boyfriend. Miles J said that
“Until R v Lillyman [1896] 2 QB 167, the evidence was confined to the making of the complaint, but thereafter the terms of the complaint itself were admitted into evidence and so the question of whether what was said amounted to complaint came to be treated as a jury question. There is not a great deal of guidance to be had from the cases as to what statements on the part of the victim fall within the scope of recent complaint and what statements fall outside.[12] It has been said that a mere narrative of events is not to be regarded as a complaint: De B v De B [1950] VLR 242. In Queensland it has been held that the complaint must be of a sexual nature: R v Braye-Jones [1966] Qd R 295 at 297.[13] If there is an issue as to whether what was said amounts to a complaint then the jury should be instructed as to the distinction between a complaint in law and statements by the victim which fall short of constituting complaint.“[14]
The majority on this issue (Miles J and Begg J) held that it was open to the jury to treat her question as a complaint, in the context in which it was asked.[15]
[9]R v Mustafa (2005) 91 SASR 62 at 65 per Debelle J.
[10]R v Manwaring [1983] 2 NSWLR 82.
[11]R v Sakail [1993]1 Qd R 312 at 321 per McCrossan J. In that case the complainant spoke poor English. The words she had used were “Joe been go with me when I been sick”. She gave evidence that “go with” meant having sex. It was said that it was a question for the judge whether the words were capable of having that meaning, but thereafter the meaning to be attributed to the statement was a question for the jury. Ryan and Byrne JJ agreed.
[12]The material omitted from this quotation refers to De B v De B [1950] VLR 242 which held that a mere narrative of events is not to be regarded as a complaint. This view was rejected by the Queensland Supreme Court in R v Robertson; ex parte Attorney-General [1991] 1 Qd R 262 at 262 per Kelly J, at 276 per Carter J. Derrington J at 271 appears to have taken the view that a narration of events by a child could be regarded as a complaint.
[13]A similar view was taken in R v Saragozza [1984] VR 187 at 198-199.
[14]R v Manwaring (1983) 2 NSWLR 82 at 90.
[15]A similar approach was taken in R v McNamara [1917] NZLR 382 where it was held that a boy’s statement to his mother that “Mr Newsholme is a bad man. Do not let me go to that church any more”, was properly admitted as a complaint in an indecent assault case.
In this case his Honour directed the jury about the limited use that could be made of complaint evidence. He went on to refer to the content of the statement and to defence counsel’s contention that Mr Kontic’s evidence was not evidence of a complaint “it was merely a question which was asked”. He then said that
“I stress …it is entirely a matter for you as to whether you find that the statement by [the complainant] to Mr Kontic constitutes a complaint of rape.”
The complainant did not ask Mr Kontic the question in a normal context, but in a situation in which Kontic had already agreed with her that the police should be notified about the sexual assault of her daughter and that notification had occurred. It was not an idle question, but was put to him in a car park outside the police station where she had gone to make a statement. In these circumstances the question was capable of supporting the inference that she was complaining that she had been raped by her husband and thus of supporting the credibility of her evidence. In my opinion, therefore, his Honour did not err in leaving to the jury the issue of whether this amounted to a complaint.[16]
[16]Compare the situation in R v Knigge (2003) 6 VR 181 at 190 where Winneke P doubted whether statements made by a child to a teacher that the accused liked to put his hand high up on her leg and that he played a game in which the children were encouraged to pull off a towel that he was wearing, amounted to a complaint. It was also held that the complaint, if it was one, was insufficiently recent.
In his oral submission, Mr Boyce did not contend that the complaint (if it was a complaint) was made too late to be treated as “recent.” I would not have accepted such a submission. The complaint to Mr Kontic was made on the same day as the alleged rape occurred. Any delay was caused by the fact that the complainant’s first priority was to take her daughter to the doctor. I would therefore reject ground 9.
Grounds 1 to 3 — evidence of the applicant’s sexual acts with his step-child
These grounds have caused me the greatest difficulty. Grounds 1 and 2 complain of the admission of evidence in respect of the attempted incest perpetrated by the applicant, against his step-daughter, on the evening before the alleged rape and to the warning. Ground 3 asserts that the Grech[17] warning given by his Honour was insufficient to overcome the prejudice occasioned by admission of that evidence. In order to assess these submissions it is necessary to set out the nature of the evidence given by the complainant.
[17]R v Grech [1997] 2 VR 609.
The complainant gave evidence that on the evening of 23 July 2003 she was at home with the applicant, her daughter and Chris Kontic, a friend who worked with the applicant. The complainant said that when she and Mr Kontic went to her daughter’s bedroom to investigate a noise, the door was closed, but not fully. She said that she opened the door:
“I saw Ivan Abela on top of my daughter. The blankets were everywhere. I saw - - - … I saw my daughter half naked…”
From this observation, the complainant formed the view that the applicant “was raping my child, that he was hurting my child”.
In cross examination, the complainant said that she did not make any direct accusations against the applicant and that on the night of 23 July she behaved as though things were normal. The complainant explained that this was because she did not want to make the applicant angry or arouse his suspicions that the matter would be reported to the police.
In the discussion between counsel and the learned trial judge about the admission of this evidence the Crown indicated that it was to be led for the limited purpose of establishing that the complainant did not consent to intercourse with the accused because she believed he had assaulted her daughter the evening before.[18] Defence counsel submitted that the learned trial judge should exercise his discretion to exclude evidence of the complainant’s belief that the applicant had assaulted her daughter, because its prejudicial effect outweighed its probative value.
[18]It was not sought to admit this evidence as evidence that the accused had a propensity to commit sexual offences. Nor did the Crown rely on s 398A of the Crimes Act in order to justify its admission.
Although the Crown led this evidence for a limited purpose, there was clearly a danger that the jury would reason that a person who sexually assaulted his step-daughter was more likely to have committed the offence of rape. In R v FJB, where the evidence related to uncharged sexual acts which the accused was said to have committed against the child complainant, Charles JA commented that
“I would need to be persuaded that evidence which, objectively, tends to show a propensity may nevertheless avoid or lose that quality simply because the Crown asserts that the evidence is introduced for a different purpose.”[19]
[19][1999] 2 VR 425 at 428 – 429.
Because of the character of the evidence it was necessary for his Honour to consider whether it was admissible under one of the exceptions to the principle that propensity evidence is normally excluded. Even if the learned trial judge concluded that it was admissible in this sense, his Honour was then required to consider whether, having regard to the nature of the evidence, he should nevertheless exclude it because of its highly prejudicial character.[20]
[20]Sutton v R (1983 - 1984) 152 CLR 528 at 534 and 565.
The learned trial judge appears to have regarded the evidence relating to the applicant’s assault of his step-daughter as admissible evidence of the relationship between the parties, which bore upon a fact in issue, in this case the issue of whether the complainant consented to engage in sexual activities with the applicant. His Honour said that
“the evidence is sought to be adduced so as to put the commission of the present offence into some form of context, to demonstrate the state of the relationship between the complainant and the accused at the relevant time, and to demonstrate the respective states of mind of both complainant and the accused at that time.”[21]
[21]Ruling of 16 May 2005.
In the context of sexual offences, relationship evidence (including evidence of uncharged acts) may be admitted as evidence that the accused had an unhealthy sexual interest in the alleged victim[22] or to place the alleged offences in a context which explains the behaviour of the complainant or the accused. In other situations, evidence showing the nature of the relationship between the accused and an alleged victim has been held admissible because it tends to prove how the conduct which was the subject matter of the charge occurred, even though it may also reveal other criminal or disreputable conduct.[23] For example, such evidence has been held to be admissible[24] to rebut a defence claim that a husband and wife had a happy marriage,[25] to show that the deceased was frightened of the accused, or to show that the accused had a motive for the alleged acts.[26]
[22]In the case law this is frequently described as evidence of “guilty passion”.
[23]See for example R v Hartwick [2005] VSCA 264 at [66] where the evidence showed that there was a hostile relationship between the accused and the deceased.
[24]Cross on Evidence (7th Australian edition by J D Heydon) [21050].
[25]R v Phillips [2003] 2 Cr App R 35. See also R v Tsingopoulos [1964] VR 676 at 680; R v Bond [1906] 2 KB 389, at 401.
[26]R v Mackay [1985] VR 623.
Although the evidence in this case differs from the kind of relationship evidence which is often led in sexual offence cases, in my view it was admissible, subject to the discretion to exclude it, which I discuss below.[27] The evidence was probative as to the circumstances in which the act of intercourse occurred between the complainant and the applicant and bore upon the likelihood of the complainant consenting to intercourse with the man she believed had sexually assaulted her 12 year old child, only the evening before the alleged offence occurred. The question is then whether the learned trial judge should have exercised his discretion to exclude that evidence because its prejudicial effect outweighed its probative value.[28]
[27]As an example in which evidence of prior incidents of violence and sexual acts by the accused against the complainant was held admissible in a rape case to show a pattern of possessiveness on the part of the accused and that the complainant had previously submitted to him see R v Mustafa [2005] SASR 62. In that case it was held that evidence of a prior assault was gravely prejudicial and should have been excluded, but that evidence of other incidents in which the accused had intercourse with the complainant against her wishes, should not be excluded on the ground of prejudice.
[28]Although the learned trial judge did not refer to Crimes Act 1958 s 398A I agree with the view of Nettle JA that the probative value of the evidence so exceeded its prejudicial effect that it was just to admit it.
In order to find that his Honour’s discretion miscarried, the court must be satisfied that he erred in principle or that his decision was clearly wrong.[29] The advantages enjoyed by the trial judges are too well known to repeat.[30] In R v Camilleri,[31] Vincent J (as he then was) considered the admissibility of evidence that the accused had committed sexual offences similar to those committed against the girls he was charged with having murdered three weeks before the alleged abduction and murder. He said:
"The task of a trial judge in determining whether in the circumstances of the case it would, in view of such a risk, be in the interests of justice for the evidence to be admitted into the trial is an extremely onerous one. On the one hand, there is a very important social value in bringing before the jury as much of the relevant and admissible material available which bears upon the questions to be determined by them as is reasonably practicable in the circumstances, so the ultimate decision is based in what might be described as the 'real world' and on a 'real' factual matrix rather than some sanitised and artificial construct which excludes evidence probative of the actual dynamics of the situation; on the other hand, there is a potential that the jury may be diverted from the proper performance of their duty by the introduction of prejudicial material..."[32]
Although I am dealing here with the different question of whether evidence which is otherwise admissible should be excluded, because of its prejudicial nature, similar considerations apply.
[29]House v R (1936) 55 CLR 499.
[30]Suvaal v Cessnock City Council 77 ALJR 1449 at 1462 and the cases cited therein.
[31][1999] VSC 159.
[32]At [18]. In this passage, his Honour is referring to the operation of the discretion to include propensity evidence under s 398A of the Crimes Act.
Counsel for the Crown, Mr Holdenson, submitted that his Honour correctly admitted the evidence because it was an essential part of the context in which intercourse between the applicant and the complainant occurred. The applicant and the complainant had lived together for six years and they had a child together. In these circumstances a jury was likely to assume that the complainant had voluntarily agreed to participate in sexual acts with the accused, in the absence of evidence suggesting why she would not have done so on this occasion.
Mr Holdenson contended that the learned trial judge had weighed the probative value of the evidence against its prejudicial effect and had not erred in reaching the conclusion that the evidence should be admitted. The jury had received an appropriate warning about the confined use they could make of the evidence.
Counsel for the applicant, Mr Boyce, conceded that the evidence had some relevance to the question of whether the complainant had consented to intercourse with the respondent, but said that its probative value was “slight”. The law required voluntary agreement to the particular sexual act, so that the jury would not have been entitled to infer consent from the fact that the parties were de facto partners.
The learned trial judge’s ruling on the admissibility of the evidence did not explain his reasons for concluding that the prejudicial effect of the evidence was outweighed by its probative value. His Honour simply stated that
“Having considered the limited nature of the evidence proposed to be adduced by the Crown I have formed the view that such background evidence is relevant and is admissible. I am of the view that the probative value of such evidence outweighs any prejudicial effect.”
Despite the sparsity of his reasoning on this issue, his Honour was careful to give the jury a Grech direction about the use they could make of the evidence. The warning expressed as follows:
“Now, reference has been made in the evidence during this trial to the events which allegedly occurred between the accused and his step-daughter – that is [the complainant’s] daughter – on the evening of 23 July 2003. Such evidence is permitted to be adduced to put the commission of the alleged rape of [the complainant] by the accused on 24 July 2003 in a proper and realistic context, to demonstrate the state of the relationship between the accused and the complainant as it existed on 23 and 24 July 2003, and particularly 24 July 2003, and to demonstrate the respective states of mind of both the accused and the complainant, [the complainant], at the time of the happening of the alleged rape by the accused, Ivan Abela, of [the complainant]. Of course it is entirely a matter for you as to whether such evidence assists you in your task in the matters I have already said, the limited way you can use such evidence. If it does assist you, then use it, or such part of parts of it which you find assist you. If it does not assist you, you reject it or reject such part or parts as do not assist you.
However, I direct you that in this court, in this court we are only concerned with one count of rape which allegedly occurred on 24 July 2003 when the accused, Ivan Abela, allegedly raped the complainant... You must not guess or speculate in any way at all what may or may not have happened in respect of any of the alleged issues between the accused and his step-daughter. That is no concern of yours at all in this case. You must concentrate on the issue of the events that are alleged to have occurred on 24 July 2003.
The evidence as to the events of the evening of 24 July, as I said, can only be used by you in the limited matter [sic] that I have already directed you about, and only for those purposes.
I direct you that it would be wrong, prejudicial and contrary to law for you to reason that because the accused had allegedly engaged in some sexual misconduct with his young stepdaughter on 23 July 2003, then he was likely to be the kind of person who was likely to have committed the crime of rape as here charged on 24 July 2003 and to use such conclusion as evidence that he had committed such a crime against his wife.”
In addition, his Honour gave the jury a detailed direction to the effect that
“In order to prove this charge, that is the charge of rape, the charge that you are concerned with in front of you there, the Crown must prove three elements of the crime beyond reasonable doubt – three elements. Those elements are (1) the act of sexual penetration, (2) the lack of consent on the part of the complainant… and (3) the guilty mind of the accused.”
He later directed explicitly that:
“The Crown must prove each of these elements beyond reasonable doubt. If it proves them all then the accused man, Ivan Abela, is guilty of rape. If it fails to prove one or more of them then the accused man, Ivan Abela, is not guilty of rape.”
I do not accept Mr Boyce’s submission that evidence which provided the basis for the complainant’s belief had only “slight” probative value on the question of whether the complainant voluntarily agreed to have intercourse with the applicant. In my opinion, the complainant’s evidence that she saw the accused lying on top of his half naked step-daughter on the previous evening, and that she believed he was raping her child, was relevant and highly probative in relation to the issue of whether the complainant voluntarily agreed to engage in sexual activity with the accused. The evidence did not concern unrelated sexual activity with a third party, but concerned the complainant’s child whom she was caring for and who lived in couple’s household. It is difficult to envisage an event which is likely to have a greater effect on the complainant’s willingness to participate in sexual activity with the applicant.
Mr Boyce submitted that the probative value of the evidence was outweighed by its highly prejudicial effect and that no judicial direction could cure this prejudice. In the circumstances of this case the effect of the Grech warning given by his Honour would simply have been to focus the jury’s attention on matters of limited relevance in determining his guilt. It followed that his Honour should have exercised his discretion to exclude the evidence.
Mr Boyce submitted that evidence bearing on the issue of whether the complainant voluntarily agreed to have intercourse with the applicant could have been adduced in a way which would place the act of intercourse in context, whilst reducing or eliminating the risk that the jury would engage in propensity reasoning. It was contended that his Honour could have allowed the Crown to lead evidence that the complainant did not voluntarily agree to have intercourse with the applicant because of unspecified events occurring on the preceding evening.
I do not agree. In my view this approach would simply have invited the jury to speculate as to the nature of those events, in a manner which would have been equally, if not more, prejudicial to the applicant. This would have been the case even if defence counsel had been warned that any attack on the credit of the complainant about the nature of the events of the preceding evening would expose the applicant to the risk that the Crown would then be permitted to lead evidence about the complainant’s belief that the applicant had raped her daughter.
Evidence relevant to the circumstances in which sexual intercourse occurred was an essential component of the Crown case. At trial the applicant’s counsel contended that the act was consensual and that the complainant had later fabricated an accusation of rape in order to bolster the claim that the applicant had assaulted her daughter. I accept that this strategy may have been necessitated by his Honour’s decision to admit the evidence. However the failure to admit the evidence as to the context in which de facto partners had intercourse created a real risk that the jury would be misled about the unusual context in which that act occurred. Despite the prejudicial nature of the evidence, in my opinion the Grech warning adequately directed the jury’s attention to the fact that they could not reason that the applicant must have raped his wife, because he may have sexually assaulted his step-daughter. Although his Honour did not refer in the passage cited above to the elements of the offence of rape which must be proved by the Crown, he did so at various other points of his judgment.
I would therefore reject grounds 1 to 3.
Ground 11
In my view it is unnecessary to consider this ground, for the reasons set out above. I would therefore dismiss the application for leave to appeal against conviction.
The appeal against sentence
The applicant was sentenced to six years’ imprisonment for the rape, with a non-parole period of four years six months. Because of his prior convictions he was required to be sentenced as a “serious sexual offender”. Under s 6E of the Sentencing Act, any sentence imposed on a serious sexual offender must, unless otherwise directed by the Court, be served cumulatively on any uncompleted sentence imposed on the offender whether before or at the same time as that term.
The applicant had previously been sentenced to three years and three months imprisonment with a non-parole period of 21 months in respect of his convictions for two counts of attempted incest. His Honour ordered that the sentence for rape was to be wholly cumulative upon the unserved portion of the incomplete sentence for the two counts of attempted incest.[33] The result was a total effective sentence of nine years and three months imprisonment, with a non parole period of five years and nine months.
[33]Under Sentencing Act 1991 s 6E. The original sentence being served by the applicant was for two counts of attempted incest. The Applicant was sentenced to three years and three months in respect of those charges. At the date of sentence for the instant offence, 169 days (and nine days pre-sentence detention) of the earlier sentence had been served. Accordingly, the current sentence was cumulated upon the remainder of the attempted incest sentences.
The applicant now appeals against his sentence on the grounds that:
·Ground 1: The learned sentencing Judge erred in failing to order any concurrency with the earlier sentences imposed in relation to offences committed against the step-daughter;
·Ground 2: The learned sentencing Judge erred in finding that it was an aggravating feature that the offence had been committed at a time when the complainant was distressed following the discovery of the applicant’s offending upon the step-daughter;
·Ground 3: The learned sentencing Judge erred in finding the existence of an aggravating feature when neither party had made submissions, or had been invited to make submissions on this issue;
·Ground 4: Further to ground 1, the learned sentencing Judge erred in failing to order any concurrency because the two groups of offending were separate from each other;
·Ground 5: The learned sentencing Judge erred in finding that he had no confidence that the applicant would not re-offend. This finding was inconsistent with the circumstances surrounding the incident;
·Ground 6: The learned sentencing Judge placed excessive weight on the likelihood of the applicant re-offending and insufficient weight was placed on his prospects of rehabilitation.
·Ground 7: The sentence was manifestly excessive.
·Ground 8[34]: The learned sentencing Judge erred in failing to apply the sentencing principle of totality.
·In the applicant’s written submissions, leave was sought to add a further ground on the basis that the learned sentencing Judge erred by finding that the assertion put by the applicant’s counsel to the complainant that the sexual intercourse was initiated by the complainant when she performed oral sex upon the applicant “was quite unsubstantiated by any evidence and rather serves again to demonstrate …[the applicant’s]… devious and dishonest nature”.
[34]Incorrectly numbered as ground 9.
At the hearing of the appeal, grounds 2 and 3 were not pursued. Grounds 1 and 4 of the appeal against sentence were that his Honour had erred in failing to direct some degree of concurrency. In my opinion that submission is well founded. From the complainant’s evidence it appears that the applicant had sex with her without her voluntary agreement, in order to persuade her to ‘talk to him’. She was understandably angry and upset about the assault on her daughter and the applicant apparently believed he could persuade her to overlook what he had done by having sex with her. While this was an entirely abhorrent course of action, it demonstrates some degree of interrelationship between the two offences. In my view this was a factor which his Honour should have taken into account in exercising his discretion under s 6E, to direct some concurrency between the sentences.
Grounds 5 and 6
Grounds 5 and 6 were in effect that the learned sentencing Judge placed excessive weight on the likelihood of the applicant re-offending, and insufficient weight on his prospects for rehabilitation. It was said that his Honour’s statement that he had no confidence that the applicant would not re-offend was inconsistent with the circumstances surrounding the incident. Given the lack of remorse shown by the applicant, his Honour was entitled to express some scepticism about the applicant’s prospects for rehabilitation. I would therefore not uphold this ground.
Grounds 7 and 8
Because I take the view that the learned trial judge erred in failing to order any concurrency with the sentences imposed for two counts of attempted incest it is unnecessary for me to consider these grounds. I note however that an exchange which occurred between Counsel and his Honour suggests that the learned sentencing Judge may have confused the task to be performed under s 6E with the process of fixing a single new non-parole period under s 14 of the Sentencing Act. He added the 15 months non-parole period which the applicant still had to serve of his minimum sentence for attempted incest to the four years six months non-parole period imposed in respect of the rape, producing to a non-parole period of five years nine months. The task his Honour was required to perform under s 14 was to fix a new single non-parole period by reference to the total effective sentence, having regard to the totality of offending.[35]
[35][2006] VSCA 62 at [49].
In R v Bortoli, Redlich JA (with whom Maxwell P and Buchanan JA agreed) said
“Section 14(1)(b) requires the Court imposing the subsequent sentence of imprisonment to determine, first, whether or not ‘it proposes to fix a non-parole period in accordance with s 11.’ If the Court determines that a non-parole period is appropriate, the Court should not consider, or state, what the non-parole period would be with respect to the head sentence which the Court intends to impose. Instead, the Court must fix a new single non-parole period by reference to the total effective head sentence, being the combination of all sentences which the offender is required to serve and complete, including the sentence of imprisonment about to be imposed. The Court must have regard to the totality of the offending, including factors in aggravation or mitigation and factors personal to the offender which are relevant to the minimum sentence which should be imposed.[36]”
[36]DPP v Ibrahimoff (2001) 3 VR 66; R v Rich (No 2) (2002) 4 VR 166; R v VZ (1998) 7 VR 693.
In DPP v BAB[37] where this court re-sentenced a serious sexual offender, O’Bryan AJA (with whom Callaway and Vincent JJA agreed) noted that
“The courts have said that a non-parole period should not be fixed according to a mathematical formula. It is a discretionary decision taking into account relevant factors, such as the age of the offender, prospects of rehabilitation, specific deterrence, the likelihood of reoffending etc.”
In this case his Honour simply added the two non-parole periods together.
[37][2002] VSCA 93 at [70].
As a result of the errors mentioned above it falls to this Court to re-sentence the applicant, having regard to all of the matters raised in both the plea in mitigation, and the applicant’s outline of argument on appeal.
Exercising the sentencing discretion
The circumstances of this offence are fully set out in his Honour’s sentencing remarks. Apart from the matters considered above, the applicant did not take issue with the weight given to other factors by his Honour. It is therefore unnecessary for me to restate the aggravating and mitigating factors affecting the applicant’s culpability in any detail. I would, however, give greater weight than his Honour to the support offered by the applicant’s family, which may assist him in his rehabilitation.
I would therefore impose a sentence of five years and six months for the rape. Having considered the totality of the offending, one year and three months of that
sentence should be served concurrently with the sentence of three years three months imposed in respect of the applicant’s convictions for two counts of attempted incest. This degree of concurrency recognises the interconnection between the rape and the two counts of attempted incest of the applicant’s step-daughter. The result is a total effective head sentence of seven years, six months. I would fix a single non-parole period of five years.
KING AJA:
I agree with the reasons advanced by Neave JA and those of Nettle JA.
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