R v Bastan
[2009] VSCA 157
•26 June 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No 502 of 2008 |
| v | |
| HALIT BASTAN | |
| DIRECTOR OF PUBLIC PROSECUTIONS | No 521 of 2008 |
| v | |
| HALIT BASTAN |
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JUDGES: | MAXWELL P, BUCHANAN and WEINBERG JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 May 2009 | |
DATE OF JUDGMENT: | 26 June 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 157 | |
JUDGMENT APPEALED FROM: | R v Bastan (Unreported, County Court of Victoria, Judge White, 20 December 2007) | |
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CRIMINAL LAW – Appeal – Conviction – Evidence of intervention order obtained by complainant – Threats to kill complainant – Whether relevant and admissible – Evidence of relationship between the parties – Whether propensity warning required – Verdict not unsafe or unsatisfactory.
CRIMINAL LAW – Sentencing – Crown appeal – Rape – Sentence of four years’ imprisonment with a minimum term of two years and three months manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Respondent/Appellant | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant/Respondent | Mr L C Carter with Ms G Morgan | Robert Stary & Assocs |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Buchanan JA and of Weinberg JA. For the reasons which their Honours give, I too would refuse the application for leave to appeal against conviction. For the reasons given by Buchanan JA, the Director’s appeal against sentence should be allowed and the applicant re-sentenced as his Honour proposes.
BUCHANAN JA:
After a trial in the County Court, the applicant was convicted on one count of rape and was sentenced to be imprisoned for a term of four years with a minimum term of two years and three months. He seeks leave to appeal against his conviction. The Director of Public Prosecutions has appealed against the sentence.
The principal witness in the trial was the complainant.
The complainant gave evidence that she married the applicant in Turkey on 30 April 2000. The complainant’s parents were Turkish. The complainant grew up in Australia. The marriage was arranged by the applicant’s aunt and the complainant’s parents. The complainant travelled to Turkey to meet the applicant two months before the wedding. Seven months after the wedding, the complainant returned to Australia. She was then pregnant. The applicant remained in Turkey until appropriate visa arrangements had been made and came to Australia six months after the birth of the couple’s son.
The complainant said that there were arguments and the applicant became aggressive. Six months after the applicant’s arrival in Australia, in about November or December 2002, the couple separated when the complainant went to a women’s refuge. They were divorced in 2004.
The complainant obtained an intervention order against the applicant after their separation. Proceedings in the Family Court resulted in the complainant having custody of the child and the applicant being granted rights of access. The
complainant and the applicant rarely spoke to each other as any conversation would result in argument. They did, however, send text messages to each other on their mobile phones.
In December 2005 the applicant began sending text messages to the complainant masquerading as another man seeking to become friendly with the complainant. The text messages were sexually suggestive. The complainant replied, saying on one occasion that she was lonely. Some 57 messages were exchanged. Eventually the complainant invited the applicant to come to her house for a cup of coffee and in the early hours of 13 December 2005, the applicant arrived at the door of his former wife’s house wearing a hat pulled down over his face. The complainant did not recognise the applicant until he entered the house and took his hat off.
The complainant said that she complained of being tricked by the applicant, who replied that that was the only way he could be with her. She said, ‘I don’t want you.’ The applicant dragged her to the bedroom, forced her on to the bed and penetrated her vagina with his penis. The complainant said that she slapped the applicant and asked him why he had done it and he said words to the effect, ‘I wanted to get revenge on you.’
After the applicant left the house, the complainant rang her mother and the police were called the same day. When he was interviewed by the police, the applicant admitted that he had had intercourse with his former wife, but said it was with her consent.
The applicant did not give evidence.
The grounds of the application for leave to appeal against conviction are as follows:
Ground 1:The verdict is unreasonable and cannot be supported having regard to the evidence on the basis that a reasonable jury properly instructed should not have been satisfied beyond reasonable doubt: (1) that at the time of the (admitted) sexual penetration, the complainant was not consenting; and (2) that the applicant was aware that the complainant was not consenting or might not be consenting.
Ground 2:The learned trial judge erred in ruling admissible and/or failing to exclude the evidence of the complainant having previously obtained an intervention order against the applicant.
Ground 3:There has been a miscarriage of justice by reason of the evidence given by the complainant that the applicant had previously threatened to kill her.
Ground 4: The learned trial judge erred by failing to give:-
(a)any direction as to the permissible use of the evidence of the background relationship between the complainant and the applicant; and
(b)any direction and/or propensity warning concerning the evidence the subject of grounds 2 (intervention order) and 3 (threats to kill).
Ground 5:There has been a miscarriage of justice by reason of an aggregate of the errors identified in ground 2 to 4 herein.
I will deal first with the allegation of errors by the trial judge before turning to the ground that the verdict was unsafe and unsatisfactory.
In his record of interview, the applicant said that the complainant obtained an intervention order against him. The complainant also gave evidence that at the end of 2002 she obtained an intervention order, which was current for 12 months. Counsel for the applicant objected to the evidence. The order was obtained some three years before the alleged offence and had expired. Counsel said the evidence was irrelevant and in any event should be excluded in the exercise of the Court’s discretion. The trial judge ruled that the evidence was admissible.
At the hearing of the appeal, counsel for the applicant submitted that the order could only prove that at the time it was obtained, the complainant did not want the applicant to contact her. It could not bear on the likelihood of the complainant consenting to intercourse with the applicant. It was submitted that even if the evidence was relevant, it should be excluded because it invited speculation as to the basis of the order and was likely to convey to the jury that there had been a judicial determination in favour of the complainant.
In determining the critical issue of consent, the jury was required to evaluate the evidence of the events on 13 December 2005 against the background of the relationship between the applicant and the complainant. The relationship was the product of the past dealings between the couple and was to be understood in the light of that history. The complainant’s evidence was that there was ongoing hostility between her and the applicant. They communicated only by text messages. The intervention order, like the circumstances of the marriage, the applicant’s aggression while they cohabited and their divorce, directly related to the complainant’s attitude to the applicant and whether she was likely to have submitted to his sexual advances.
In R v PFD,[1] Winneke P, referring to evidence of assaults in a trial of a husband accused of anally raping his wife, said:
The evidence in this case was led, not to show that the accused man had a propensity to commit acts of anal rape, but to prove, in the event that the jury found that intercourse had occurred, that it was non-consensual and that the applicant was aware that it was non-consensual. In other words it was led, in conformity with established principle, on the basis that it tended to establish matters relevant to the relationship between the applicant and the complainant.
[1](2001) 124 A Crim R 418, 426.
Counsel for the applicant pointed out that the assaults considered in R v PFD were alleged to have taken place earlier on the same day as the alleged rape. Counsel cited a passage from a judgment of Barwick CJ in Wilson v R.[2] In that case, evidence of quarrelling between a husband and wife was admitted in the trial of the husband for murdering his wife. Barwick CJ pointed that the quarrelling continued up to the time of the deceased’s death and contrasted the case with R v Tsingopoulous,[3] where on a trial of a husband for murdering his wife, evidence of statements by the husband critical of his wife some four to six years before the murder was admitted in evidence. The Full Court held that the evidence was wrongly admitted as being too remote. In the present case, the intervention order and the threats to kill were said to have occurred three years before the alleged rape.
[2](1970) 123 CLR 324, 339.
[3][1964] VR 676.
Whether evidence of events bearing upon a relationship of an offender and his victim is too remote depends upon all the circumstances of the case. The time between the events and the commission of the alleged offence is but one aspect of the matter. Although the making of the intervention order and the threats to kill occurred three years earlier, they were significant events in that they revealed the circumstances in which the applicant and the complainant separated. That separation continued up to the time of the alleged rape.
The evidence was consistent with and formed part of the context of the other events that occurred in the course of the parties’ relationship. In my opinion the evidence was relevant and significant. Counsel for the applicant chose not to investigate the circumstances in which the order was made. He was content for the bare fact of the making of the order to be before the jury. I do not think the trial judge was bound to exercise his discretion to exclude the evidence.
As to ground 3, the prosecutor had stated at the outset of the trial that he did not propose to lead evidence from the complainant as to threats to kill by the applicant. The evidence was part of a non-responsive answer to a question in examination in chief. The prosecutor asked the complainant whether she left him and went to a women’s accommodation. The complainant answered:
That’s true, after he threatened to kill me.
Later, in cross-examination, in answer to a question as to whether she was arguing with the applicant, the complainant said that he also threatened to kill the complainant. No application was made to discharge the jury.
Counsel for the applicant on appeal submitted that the evidence was ‘purely evidence of bad character’ and must have had an impact upon the jury.
I doubt that the evidence was likely to have influenced the jury to any significant extent. The fact that counsel for the applicant made no application to discharge the jury would indicate that he took a like view. His attitude was presumably that it was best to ignore the evidence. In fact, everybody did. The evidence was given in non-responsive answers, it was unelaborated and was omitted from the trial judge’s summary of evidence to the jury.
Pursuant to ground 4, it was submitted on behalf of the applicant that a direction as to the use the jury could make of the evidence of the background relationship between the applicant and the complainant was necessary and in particular a propensity warning should have been given as to the evidence concerning the intervention order and the threat to kill.
Counsel for the applicant gave some thought to whether a propensity warning should be given with respect to the evidence of threats to kill the complainant, but decided against it. He told the trial judge:
The only matter I’ve thought briefly about was that [the complainant] referred, despite counsel not inviting it, to the threat to kill on two occasions … I don’t propose to refer to that in my address … I wouldn’t ask that there be a specific uncharged act direction about that, in my submission, it would only risk drawing further attention to it.
Counsel sought no direction in respect of the intervention order.
In my view a propensity direction was not required in this case. I think there was little chance of the jury reasoning that the applicant was the kind of person likely to have committed the offence because of the intervention order or the threats, having regard to the differences which existed between the evidence of the intervention order and threats on the one hand and the evidence of the rape on the other hand. On the other hand, the applicant’s case may well have been prejudiced by drawing attention to those matters. It may be going too far to say that any evidence of impropriety or discreditable conduct on the part of an accused person always requires a propensity warning to be given. I think that the judge’s overriding duty to ensure justice was done did not in this case require him to disregard counsel’s wishes.
I turn to the first ground of the application, that the verdict is unreasonable.
Counsel for the applicant relied upon a number of items of evidence, which in combination, he contended, led to the conclusion that the jury should have had a reasonable doubt as to whether the complainant did not consent to intercourse and whether the applicant was aware that the complainant was not consenting.
The items were:
· In her first two statements to the police, the complainant did not say that after sexual intercourse took place, the applicant remained at her unit, had a cigarette and spoke to her on the back porch. Rather, she said that the applicant left immediately. It was not until her third statement that the complainant referred to the applicant lingering at the unit. At the committal the complainant said that the first two statements were true and that she had had time to consider their contents.
· There was no evidence of physical injury or damaged clothing.
· The complainant denied that there was a flirtatious content to the text messages.
· The hat said to have been worn by the applicant did not constitute a disguise. The allegation that the applicant wore a hat was not included until the third statement.
· In her evidence the complainant said that neither she nor the applicant removed any clothing. In her first statement, however, the complainant said that the applicant got dressed after the act of intercourse.
· The conduct of the complainant after the alleged rape raised a reasonable doubt as to whether she had been raped: in her first statement and in her evidence, she said to the applicant: ‘Why did you trick me?’; the complainant removed her underwear and put on a dressing gown although it was not certain that the applicant had left the house; the complainant gave evidence that in the morning she ‘realised’ what had happened.
· The complainant agreed that the applicant said to her after the alleged rape that he had a new fiancée coming from Turkey, supplying a motive to falsely accuse the applicant.
· The evidence of the intervention order and threats to kill did not render it less likely that the complainant consented to intercourse for there had been no difficulties in the preceding six months.
· The applicant’s account of a longer period of time spent by him at the complainant’s unit was more plausible than the complainant’s version.
· The applicant was a person of prior good character.
The matters now relied upon to impugn the verdict were all before the jury, before whom the complainant gave evidence. While a jury may have been persuaded that the matters relied upon by the defence did raise reasonable doubts as to the complainant’s evidence, in my opinion none of them compelled the jury to reach this conclusion. The items of evidence were not necessarily inconsistent with the rape alleged by the complainant.
Other aspects of the evidence can be set against the matters relied upon by the applicant. The complainant said that she did not mention that the applicant smoked a cigarette after the act of intercourse until the third statement because she was ‘in shock’ when she went to the police and ‘she must have forgotten it’. The person who had intercourse with the complainant was her former husband, not a stranger. The absence of evidence of physical injury or damaged clothing was hardly decisive. The complainant said that her young son was sleeping in the next room and ‘I could not make a noise, I couldn’t yell, I couldn’t scream.’ The content of the text messages was before the jury. The fact that the complainant did not agree that they could be characterised as flirtatious is hardly significant. The complainant’s evidence was that she did not know that the person entering her house was the applicant until he had stepped inside the door and taken off his hat. The wearing of a hat to shield the applicant’s face was consistent with his assumption of a false identity when he sent text messages to the complainant. The existence of a motive to make a false accusation does not entail the result that the accusation was false. The intervention order and threats to kill had not been overtaken by a new friendly relationship. The complainant and the applicant were still not on speaking terms in December 2005.
In all the circumstances I consider that a reasonable jury could have found the applicant guilty of the offence.
The sole ground of the appeal by the Director is that the sentence was manifestly inadequate. Particulars of that ground are that the sentencing judge failed to have sufficient regard to sentencing considerations such as deterrence and denunciation and gave too much weight to mitigating factors. I shall continue to refer to the offender as ‘the applicant’.
The Director relied on a number of circumstances said to increase the gravity of the offence: the rape was committed on the applicant’s former wife in the sanctity of her home while her young son, aged four years, lay sleeping in the next room. The applicant planned the attack. The applicant disguised himself and sent false text messages. The applicant had a history of aggression. It was also submitted that the high incidence of domestic violence required a sentence which would operate to deter others who might contemplate raping their partners or ex partners. Counsel for the Director said that the sentence appeared to treat the crime of rape against a former wife as a less serious form of rape. It was also submitted that there was in this case a need to specifically deter the applicant, who had shown no remorse and exhibited lack of insight.
The matters relied upon by the Director were in terms considered by the sentencing judge. His Honour said that he took into account the circumstances of the offence on the basis that the jury had accepted the account given by the complainant; recognised the serious nature of the offence, characterising the applicant’s conduct as ‘brutish, for your own sexual gratification and with no consideration of the feelings of your former wife’; appreciated that the offence involved a degree of planning and premeditation; and took account of the maximum penalty for the offence and the need for general deterrence. His Honour also took into account the applicant’s background and personal circumstances, including his age, his previous good character, his good work history, the difficulties he encountered in moving from a rural environment in Turkey to Australia, the potential loss of his business and house and the fact that imprisonment would operate harshly upon the applicant, who had a limited ability to converse in English and was isolated from his family in Turkey. At the hearing of the appeal, counsel for the applicant also relied upon the delay of two years between the laying of the charge and sentence and the fact that the complainant did not make a victim impact statement.
Nevertheless, I am of the opinion that the sentence itself suggests that the exercise of his Honour’s discretion miscarried.
I consider that the sentence would generally be regarded as inadequate if imposed upon an offender who tricked his way into the house of a stranger and raped her. The fact that the applicant and the complainant, in the past, had shared a consensual sexual relationship may have played a part in producing this sentence. In my opinion it should have played no part save insofar as those who have been in a relationship should be deterred from asserting any right or power in a like fashion against their former partners. This rape constituted an act of dominion by the applicant over the complainant’s body, which is not to be tolerated. In my opinion, the sentence, and in particular the non-parole period, was manifestly inadequate and represents an error that warrants interference by this Court.
Making the conventional reduction for double jeopardy, I would re-sentence
the applicant to be imprisoned for a term of five years and six months and would fix a minimum term of three years and six months before he is to be eligible for parole.
WEINBERG JA:
I have had the advantage of reading in draft the reasons for judgment prepared by Buchanan JA. I agree with his Honour, for the reasons there set out, that the application for leave to appeal against conviction should be dismissed. I also agree that the appeal by the Director of Public Prosecutions against the sentence imposed should be allowed, and the respondent to that appeal re-sentenced as his Honour proposes.
I wish to say something briefly about each of grounds 2, 3 and 4 in support of the application for leave to appeal against conviction.
In my opinion, evidence regarding the complainant having previously obtained an intervention order against the applicant was both relevant and admissible. Its probative value was significant, and by no means outweighed by any potential prejudicial consequences.
The evidence bore directly upon the relationship between the applicant and the complainant, and in particular, the likelihood that she had consented to sexual intercourse with him. ‘Relationship evidence’, as it is sometimes described, is of course admissible if relevant.[4] Such evidence should not be confused with similar fact, or propensity evidence.
[4]The term ‘relationship evidence’ has been decried with a preference being expressed for ‘direct evidence’. See generally R v Frawley (1993) 69 A Crim R 208, 222-3 (Gleeson CJ) and R v Clark (2001) 123 A Crim R 506, 566 (Heydon JA)
The matter is helpfully canvassed in JRS Forbes, Similar Facts.[5] The learned author points out that in such cases, it is not the accused’s disposition towards people in general which is being considered, but rather his or her relationship with or towards one particular person. That relationship may be one of mutual attraction,
or mutual antipathy.
[5]Law Book Co Limited 1987, 223-7.
A survey of the authorities demonstrates that where relationship evidence is sought to be led, no high degree of similarity between the prior conduct and the subject act need be shown.[6] Indeed, it has been suggested that ‘relationship evidence’ can be assimilated, in this regard, to evidence of motive.[7] In that sense, as I have previously noted, relationship evidence has long been regarded as quite different to propensity evidence.[8]
[6]Wilson v R (1970) 123 CLR 334, 338 (Barwick CJ), 344 (Menzies J) and R v PFD (2001) 124 A Crim R 418, 426.
[7]R v Ball [1911] AC 57, 68.
[8]R v Bond [1906] 2 KB 389, 401 (Kennedy J).
Of course, the admissibility of this evidence will depend, initially at least, upon whether it passes the threshold test of relevance. An isolated quarrel of a minor nature that occurred long before the commission of the offence charged may have little or no probative value.[9] On the other hand, depending upon the particular circumstances, a dispute which culminates in a formal court process such as the obtaining of an intervention order, may throw considerable light upon an issue such as whether consent has been negated. It is also perhaps worth noting that sometimes even retrospectant evidence has been admitted where it throws light upon the incident in question.[10]
[9]R v Tsingopoulos[1964] VR 676 and R v Iuliano [1971] VR 412, 416.
[10]R v Herbert [1916] VLR 343. See also Wales v Wales [1900] P 63 (a case where subsequent acts of adultery were held to be relevant when considering whether the alleged act took place).
Relationship evidence has, historically, been led in connection with offences such as rape.[11] Typically, that evidence has been led on behalf of the accused who seeks to support a defence of consent by proving prior acts of intimacy.[12] It is not, however, confined to such cases. There are instances where it has been held that the complainant may answer a defence of consent by giving evidence that far from harbouring any desire for the accused, she loathes him, and has previously complained about his having molested her.[13]
[11]See R v Lloyd (1836) 173 ER 141; R v Holmes (1871) 12 Cox CC 137; R v Fitzgibbon (1885) 11 VLR 232 and R v Horne (1903) 6 WALR 9.
[12]R v Fitzgibbon (1885) 11 VLR 232.
[13]Garrett v R (1977) 139 CLR 437, 444 (Barwick CJ).
Of course, a common use of this type of evidence is to show a pre-existing attitude of hostility or aggression on the part of the accused towards the victim of a murder or assault.[14]
[14]Wilson v R (1970) 123 CR 334 and R v Hissey (1973) 6 SASR 280.
As regards the non-responsive answer given by the complainant regarding the threat to kill, I consider this to have been of little import in the particular circumstances of this case. In any event, that evidence would, in my opinion, have been admissible as bearing upon the issue of consent, had the Crown chosen to lead it.
It follows that there was no need for a propensity direction to have been given in this case. No such direction was sought at trial, and there was little risk of the jury reasoning impermissibly without it.
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