R v B a M
[2007] VSCA 27
•1 March 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 31 of 2006
| THE QUEEN |
| V |
| BAM |
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JUDGES: | VINCENT and NEAVE JJA and KELLAM AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 February 2007 | |
DATE OF JUDGMENT: | 1 March 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 27 | |
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Criminal law – Conviction – Sexual penetration of a child under 16 years – Whether jury should have been discharged by reason of irrelevant comment by a witness – Whether evidence of recent complaint was admissible – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C J Ryan, SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr M Kowalski | Clarebrough Pica |
VINCENT JA:
I will invite Kellam AJA to deliver the first judgment.
KELLAM AJA:
On 2 February 2006, the applicant was convicted by a jury verdict on one count of sexual penetration of a child under the age of 16 years. He was sentenced to a term of imprisonment of five years, with a non-parole period of three years and six months. The applicant now applies for leave to appeal against conviction.
The trial was contested principally on a single issue, namely, whether the prosecution could prove that the applicant had penetrated the anus of the complainant as alleged by her. Upon arraignment before the jury, the applicant had pleaded guilty to the alternative charge of indecent assault of the complainant.
The background facts may be stated briefly. The complainant is the niece of the applicant. On the evening of 26 February 2005, the complainant, who at the time was nine years of age, went with her aunt, the applicant's wife, to the home occupied by the applicant and his wife. The applicant and his wife had four children under six years of age. The applicant had spent the day at home drinking beer. The five children in the household went to bed about 9 p.m. The complainant shared a bed with one of her young cousins.
The applicant entered the bedroom on four occasions thereafter. On the fourth occasion, the applicant knelt over the complainant, who pretended to be asleep. He pulled down her pants and put his penis in the area of the complainant's bottom. There is no dispute that he ejaculated, as his DNA was later found on the inside of the back of the complainant's pants. Soon thereafter, the applicant left the room and the house. Almost immediately thereafter, the complainant went to the living room. She was crying. She then went to the toilet and washed herself. She complained to her aunt that the applicant had got on top of her. She was taken home and made a more specific complaint to her mother. Soon after that, she was taken by ambulance to the Royal Children's Hospital, where she was examined medically. Shortly after 1 p.m. the following day, she was interviewed on videotape by police.
As stated above, there was no dispute at trial that the applicant had indecently assaulted the complainant by placing his penis in the vicinity of her genital area and by ejaculating on her and on her clothing. The issue in contest at trial was whether the complainant's anus had been penetrated by the applicant.
The wife of the applicant gave evidence. She said that after the children went to bed at 9 p.m. the applicant left the lounge room four times, saying he was going to tuck in the baby. About five minutes after he had left the room for the fourth time, the complainant came into the lounge room crying. She said, "Uncle … go on top of me." The applicant's wife looked at the bed in which the complainant had been sleeping and felt a white, sticky spot on the right-hand side of the bed. She noticed that the back of the complainant's skirt and pants were wet. She gathered the children and drove to her sister's house, where she told her sister, the mother of the complainant, what the complainant had told her. Police and ambulance were then called.
The mother of the complainant gave evidence. She said that, about 10.30 or 11 p.m. on Saturday 26 February 2005, she heard someone knocking at the window of her house. It was her sister, in company with the complainant. They were both crying. She took them into the lounge room and the complainant told her that her uncle had come to her bed, had put his hand on her head and the other hand over her mouth and leaned down on the bed and exposed himself. She said that her uncle had penetrated her with something "that is long". The complainant was crying when she said this. Soon thereafter, police attended and an ambulance took the complainant to the Royal Children's Hospital. The complainant was examined by Dr John Harry at 2.30 a.m. on 27 February 2005. The complainant gave him a history and told him that her uncle "stuck his dick in my bum". However, Dr Harry said that he did not obtain clarification from the complainant as to whether it was her vagina or anus that had been penetrated. Dr Harry examined the complainant and found that her genitals and anus were normal. He expressed the opinion that the normality of her genitals made full vaginal penetration by a penis rather unlikely, but he said that it was possible that anal penetration might have occurred, as the appearance of the anus is often clinically normal even if the anus had been penetrated only a few hours previously.
The complainant was interviewed on videotape shortly after 1 p.m. on 27 February 2005. She said that on the evening in question she could not sleep because it was too hot. She said that her uncle kept coming in, until she slept. She said, "And then he thought I was asleep but I wasn't. I was actually lying down, and then he came into my room. He thought I was asleep. I closed my eyes and he held me, my mouth and head. He didn't lie down, and then he went on the bed, on his knees, and then he took my pants off, and left, and then came back, and then he pushed something in my bottom, and when he left he put my pants up." Later in the interview she said, "He took my pants off and he pushed something in me, like this part of my bottom." The transcript reveals that she indicated to the left side of her bottom area as she did this. Upon being further questioned by police, she said the applicant "pulled my pants down and he put something in my bum". This was repeated, when she said that after pulling her pants down the applicant "put something in my bottom". She said further in answer to a question as to how she knew he had put something in her bottom, "'Cause I felt something going in my bottom." Later in the interview, over 40 minutes after it commenced, she was asked a further question: "Just one more question that I want to ask you. When you say 'my bottom', okay, what part of your body is your bottom?" The transcript of the interview reveals that the complainant indicated her bottom area and said, "There." She was then asked the following question: "There? What does that part of your body do?" Answer: "I think the poo comes out of there." Question: "The poo comes out of there? Okay. Is it the place where the poo comes out of, or is it the place where the wee comes out?" Answer: "The place that it comes out of, the wee comes out of." Question: "Okay, so when you're saying your bottom, you actually mean the place where the wee comes out?" Answer: "Yes."
Subsequently, and shortly before the commencement of the trial, the complainant was shown the videotape of her interview on 27 February 2005. Upon viewing the taped interview, the complainant forthwith informed police that the statement made previously by her that she had been penetrated where the "wee comes from" was incorrect, and that she had been confused when she said that. Accordingly, she was re-interviewed on 27 January 2006. She said: "When I was watching it myself I just noticed that I - I just got confused, and you asked me, and I just said 'There'." The transcript reveals she pointed to her groin area. "But it was actually the back" - points to behind. In the course of that interview the complainant reiterated that the applicant had put his penis in her bottom at the back, "and where I do poo from."
The complainant was cross-examined about these matters in the course of giving evidence in the trial, and she repeated her explanation that in the course of the first interview she had become confused. She steadfastly maintained that her uncle had put his penis in her anus. Accordingly, the issue before the jury in dispute was in short compass. It was whether or not the jury were entitled to accept beyond reasonable doubt the evidence given by the complainant that she was penetrated by the applicant.
There are three grounds of appeal. Ground 1 is that the learned trial judge erred in declining to exercise his discretion to discharge the jury, upon application by counsel for the applicant, in response to the admission into evidence of what was said to be the prejudicial opinion evidence of Dr John Harry.
Dr John Harry, who, as stated above, examined the complainant at the Royal Children's Hospital at 2.30 a.m. on the morning of 27 February 2005, gave evidence in the course of the trial. In the course of cross-examination, he was asked questions as to injuries which might be seen in a situation of anal penetration of a nine-year-old child. He said that the complainant's anus as viewed by him at the time of his examination appeared normal and not inflamed, although he said it was more difficult to judge changes on the skin of a dark-skinned person such as the complainant, as compared to a light-skinned person. In the course of re-examination, Dr Harry was asked the following question by the prosecutor:
"Bearing in mind a three-and-a-half-hour break between the time of the alleged activity taking place and your examination, does that change your view as to the possibility that this girl may have been anally penetrated and there are no overt signs?"
He gave this answer:
"I think it's possible it can happen, because I see children with a story of alleged anal penetration often happening only a few hours before, and yet on examination the anus appears to be normal. I also of course see children where their anus is not normal, and there are two conclusions to draw from that. Either the child was not anally penetrated and she is mistaken, or perhaps not even telling the truth at all, or else that in fact this can occur and yet there can be very little to see when you examine the anus even only a few hours later. I realise you have the two possibilities." He finished the answer with this sentence: "Having listened to girls and boys tell their story, I think it's a story that very few children actually invent."
Upon this answer being given, counsel for the applicant said: "I object to that. In my submission that is an inappropriate comment." Clearly he was referring to the last sentence of that answer. Counsel then requested the judge to deal with the matter in the absence of the jury. In the absence of the jury, and having obtained instructions from his client, counsel submitted that his Honour should discharge the jury. He contended that the comment was "not capable as (sic) being dealt with by a proper direction" by his Honour. The prosecutor said that he agreed that the comment made by Dr Harry "cannot be cured" by his Honour mentioning it to the jury "without highlighting it." As to the question of discharge of the jury, the prosecutor adopted a neutral position.
His Honour then ruled in the following terms:
"The test, as counsel have indicated, is that it must be established that there is a high necessity for the discharge of the jury at this stage, or at any stage of the trial but certainly at this stage. A re-trial of this matter would cause considerable inconvenience and expense, but that's a minor factor to be taken into account. The evidence was given almost at the end of the prosecution case and I have been told that it is unlikely that the defence will call any evidence. In view of the stage that the trial has reached, and my assessment of the possible impact of that evidence that was given, the application is refused."
After his Honour had handed down that ruling, counsel for the applicant enquired of the learned trial judge as to whether or not he proposed, in the course of the matter, to give the jury directions as to the remark made by Dr Harry. His Honour said:
"Both counsel have said that I should not do so, and I agree with that submission, that to highlight the matter I take it it's your view and Mr Sarah's [referring to the prosecutor] view it would only cause further harm."
Counsel for the applicant then enquired as to whether the learned trial judge would allow him to consider further the matter of a jury direction, to which the judge said:
"Yes, certainly, you can raise that again. Yes."
It was not raised again at any stage by counsel for the applicant. Furthermore, when his Honour summarised the evidence of Dr Harry, he did not refer to the impugned part of the answer given by Dr Harry. However, after the charge to the jury and after the jury had retired to consider their verdict, they asked a question: "Can we have a copy of what Dr Harry said in court?" His Honour then read the whole of the evidence given by Dr Harry with the exception of that part of the answer given in re-examination which was the subject of complaint by counsel for the applicant upon making his application for discharge.
Counsel for the applicant contends before us that, in circumstances where Dr Harry was giving evidence as a medical expert with many years of experience in the field of child abuse and who had examined many thousands of children over that period, the impugned comment made by him went to the ultimate issue in the trial and was so prejudicial that it called for the discharge of the jury.
In my view, the non-responsive comment made by Dr Harry did not call for the discharge of the jury. The comment needs to be looked at in its context. The context was whether or not the fact that there were no overt signs of injury to the anus of the complainant meant that it was not possible for her to have been anally penetrated. In this context, Dr Harry said he had seen children who alleged anal penetration a few hours previously, where their anus was normal and where it was not normal. He said two possibilities could be drawn: the first, that the child was not anally penetrated and was mistaken or untruthful; and the other, that he or she was so penetrated and there can be little to see only a few hours later. There is nothing objectionable in that evidence. Indeed, it raises the possibility of children being mistaken or untruthful. The question is whether his further non-responsive statement, that in his experience very few children would invent such a story, required the discharge of the jury. The learned trial judge formed the view, taking into account the stage of the trial and his assessment of the possible impact of the evidence, that there was no high degree of necessity to discharge the jury. The test applied by him was the correct test. [1] In my view, no high degree of necessity had arisen. Dr Harry was the last witness in the trial. A ten-year-old child had been cross-examined, and the trial, although short, was nearing its end. Opinion might differ as to whether or not it would have been more helpful for a judicial direction to be given, at that time, to the effect that the comment was not relevant, and further more that it was the particular circumstances of the case before the jury which required consideration by them, and not some other case. Nevertheless, counsel for the applicant did not seek such a direction, either at the time of ruling or later. As noted above, the judge's summary of evidence excluded any reference to the comment. Moreover, in response to a question from the jury when he read out the evidence of Dr Harry to the jury, he excluded any reference to the final remark of Dr Harry.
[1]See R v Boland [1974] VR 849.
It should be observed that in the circumstances of this case many of the facts relating to the behaviour of the applicant were not in dispute. It was not in dispute that he had entered the room in which the complainant was sleeping on several occasions. It was not in dispute that he had kneeled on her bed. Apparently it was not in dispute that he had removed her pants. It was not in dispute that he had ejaculated in her genital area and that there was semen on the inside of the back of her pants. The applicant gave no evidence. In the course of cross-examination, it was never put directly to the complainant that penetration did not take place. The closest to any suggestion that she had not been penetrated was contained in the following question: "When you say it went in your poo place, if I said to you it didn't really go into your poo place, inside your poo place, what would you say to that?" The answer of the complainant was: "You are telling a lie." No alternative version was ever put to her. It was not put to her that she had invented any story at all. Rather, the defence case appears to have been based upon the possibility of unreliability on the part of the complainant by reason of the conflict in the two VATE tapes.
In all of those circumstances, unresponsive as the last sentence of Dr Harry's answer might be, I do not conclude that the judge can be said to have erred in his conclusion that there was no high degree of necessity to discharge.
Ground 2 is a complaint that the learned trial judge erred in permitting additional complaint evidence to be led from the complainant's mother, in circumstances where the Crown was given leave by the learned trial judge to adduce first complaint evidence from the complainant's aunt and further complaint evidence from Dr Harry. It will be recalled that the complainant made her first complaint to her aunt very soon after the applicant left the room on the fourth occasion. Her aunt gave evidence that the complainant told her, "Uncle … go on top of me." The complainant then said she wanted to go home. Her aunt then drove her home. The complainant was still crying at that stage. The aunt said in evidence that she had told her sister what her niece had told her. The aunt was not, however, cross-examined at all about this conversation or about what she had actually said to her sister. The mother of the complainant was then called. Prior to her giving evidence, counsel for the applicant had objected to her giving evidence of complaint made to her by her daughter. The learned trial judge had ruled such evidence as being admissible. In the course of giving her evidence, she said that she had been told by the complainant that her uncle had knelt on the bed, exposed himself, then penetrated her with something long.
Counsel for the applicant submits that the complaint made to the mother should not have been admitted into evidence. It is argued that the evidence was prejudicial because its effect was such that the jury were likely to have relied upon the words spoken to the mother as being proof relevant to the fact in issue in the trial, namely, whether penetration had occurred. Furthermore, it is argued that the evidence did not satisfy the test for admissibility as it was not a spontaneous account made at the first opportunity and was potentially contaminated by the complainant's aunt's prior utterances.
In my view, there is nothing in this ground. First of all, the complaints made by the complainant to both her aunt and her moth were made at the first reasonable opportunity. Upon hearing the complaint of sexual abuse, the aunt almost immediately took the complainant to her mother, where her complaint continued. There was no basis to exclude that evidence. There is no reason to believe that her complaint to her mother was other than a spontaneous and unvarnished narrative. In my view, it was a continuation of the complaint. Even if perceived as a second complaint, it can nevertheless be regarded as having been made at the first reasonable opportunity. Evidence of two complaints may be admissible, where each complaint can be fairly regarded as having been made at the first reasonable opportunity after the offence.[2] In any event, the learned trial judge gave clear and correct instructions to the jury as to the nature of the complaint evidence and the way in which it could be used. No exception was taken to those instructions and none can be.
[2]See R v Freeman [1980] VR 1 and R v Wilbourne (1917) 12 CAR 28.
Ground 3 is that the learned trial judge failed to adequately direct the jury against the prohibited use of the combined complaint evidence in all the circumstances of this case. First, it is appropriate to observe that there was no exception taken to his Honour's charge. As stated above, the learned trial judge gave the jury clear directions as to the use of complaint evidence. He told them that the evidence of complaint was not to be regarded as evidence independent of the evidence of the complainant and he told them that the only evidence supporting the allegation of penetration was the evidence of the complainant. In my view, exception cannot be taken as to his directions as to complaint. It was made clear to the jury that the only use that could be made of that evidence was in relation to the credibility of the complainant.
I would dismiss the application.
VINCENT JA.:
I agree and do so for the reasons given by Kellam AJA.
NEAVE JA:
I have had the advantage of reading in draft the reasons of Kellam AJA. For the reasons that he gives, I agree that the application should be dismissed.
VINCENT JA:
The order of the Court is that the application for leave to appeal against conviction is dismissed.
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