R v C, M
[2014] SASCFC 116
•30 October 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, M
[2014] SASCFC 116
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Stanley)
30 October 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
EVIDENCE - GENERAL - RESPECTIVE FUNCTIONS OF JUDGE AND JURY - SUFFICIENCY OF EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTION TO JURY
Appeal against conviction for aggravated indecent assault.
The appellant, MC, taught at the high school attended by the complainant, AB. She alleged that he there committed sexual offences against her on different occasions when she was a 14-16 year old student. The prosecution case was that MC kissed AB (a “quick peck on the lips”) while exposing his penis (count 1); slid one hand into her underwear, felt her vagina, inserted one finger, and moved it about (count 2); took out his penis, and asked her to masturbate him, which she did, causing him to ejaculate (count 3); and took out his penis, which she took into her mouth for a short period (count 4). The defence case was that none of these things happened. The jury could not reach verdicts on counts 2, 3 or 4 but did reach a majority guilty verdict on count 1. The appellant appealed on grounds including that the conviction is unsafe in that the jury majority may have been satisfied of a kiss having occurred but may not have been satisfied of the alleged accompanying act of exposing the penis, and that therefore the verdict might not reflect a finding beyond reasonable doubt that the act of kissing was an indecent assault in the required sense of being an assault with a “sexual connotation”.
Held per Peek J (allowing the appeal):
1. The offence of indecent assault requires proof of an element of “sexual lewdness”, often referred to as a “sexual connotation”.
2. The effect of the prosecutor’s address was not unlikely to have been interpreted by the jury as a direction that they could, and should, convict the appellant on count 1 simply on the basis that a “quick peck on the lips” given by an adult male school teacher to a 15 year old female student necessarily involved sexual lewdness and thereby constituted an indecent assault irrespective of whether they were satisfied beyond reasonable doubt that he had exposed his penis.
3. The trial Judge’s summing up had an unacceptable tendency to suggest to the jury that a conviction on count 1 could be founded upon satisfaction beyond reasonable doubt that the “quick peck on the lips” had been established irrespective of whether he had exposed his penis and without reference to the necessity for proof of a “sexual connotation”.
4. In circumstances in which the jury were not prepared to convict in respect of the plainly indecent conduct alleged in counts 2, 3 or 4, it is not safe to assume that the jury majority were satisfied that at the time of the alleged kiss MC also exposed his penis; they may have convicted solely on the basis of the “quick kiss on the lips” of a female student without any “sexual connotation”.
5. The conviction on count 1 is set aside and count 1 is to be re-tried.
Crowe v Graham (1968) 121 CLR 375; M v The Queen (1994) 181 CLR 487; Anderson v The Queen (1991) 53 A Crim R 421, applied.
Sabet v The Queen [2011] VSCA 124, distinguished.
R v Leeson (1968) 52 Cr App R 185; R v Kilbourne (1972) 56 Cr App R 828; R v Court [1989] 1 AC 28; R v Harkin (1989) 38 A Crim R 296, discussed.
DPP v Kilbourne [1973] AC 729; R v Bryant [1984] 2 Qd R 545; R v McBride [2008] QCA 412, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"sexual lewdness", "sexual connotation"
R v C, M
[2014] SASCFC 116Court of Criminal Appeal: Peek, Blue and Stanley JJ
PEEK J. Appeal against conviction for aggravated indecent assault.
The appellant stood trial before a District Court Judge and jury on the following charges:
First Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[MC] between the 1st day of July 2008 and the 31st day of December 2008 at Rostrevor, indecently assaulted [AB].
It is further alleged that the offender abused a position of authority, or a position of trust in committing the offence.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(5) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[MC] between the 1st day of January 2009 and the 31st day of December 2009 at Rostrevor, being a person in a position of authority in relation to [AB], had sexual intercourse with [AB], a person of the age of 15 or 16 years, by inserting a finger into her vagina.
Third Count
Statement of Offence
Procuring an Act of Gross Indecency. (Section 58 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[MC] between the 1st day of January 2009 and the 19th day of November 2009 at Rostrevor, procured the commission of an act of gross indecency by [AB], a person of the age of 15 years.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(5) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[MC] between the 1st day of January 2009 and the 31st day of December 2009 at Rostrevor, being in a position of authority in relation to [AB], had sexual intercourse with [AB], a person of the age of 15 or 16 years, by causing her to perform an act of fellatio upon him.
The appellant was convicted by majority verdict on count 1 only and appeals to this Court against that conviction. The jury were unable to reach a verdict on any of counts 2 to 4 and were discharged from returning verdicts on those counts.
Ground 7 of appeal asserts inter alia that the verdict is unsafe. In the appellant’s outline of argument it is asserted in the context of that ground:
The only count upon which the jury returned a verdict was count 1. The conduct the subject of that count was a kiss which was described by the complainant as a ‘quick peck kind of kiss’ on the lips.
That conduct, on its own, was not necessarily an indecent act. The accompanying act of the appellant producing his penis, if proved beyond reasonable doubt, was a much more serious allegation that had the capacity to transform the circumstances of the kiss from equivocal to indecent.
Thus, the appellant complains that the verdict is unsafe in that the jury majority may have been satisfied only of a kiss having occurred but may not have been satisfied that the alleged accompanying act by the appellant of exposing his penis was proven beyond reasonable doubt; in such circumstances, the verdict might not reflect a finding beyond reasonable doubt that the act of kissing was an indecent assault in the required sense of an assault with a sexual connotation.
The evidence on count 1
The date of birth of the complainant (AB) was 19 November 1993 and she turned 15 years old on 19 November 2008. Count 1 is alleged to have occurred on some date between 1 July 2008 and 31 December 2008. AB may therefore be taken to have been aged between 14 years and seven months and 15 years and one month at the time of the kiss found to have occurred. As to the facts constituting count 1, AB stated in evidence:
A… In that office he kissed me, a quick peck kind of kiss. That was the first time he kissed me in there and he also presented his penis to me and asked me to touch it and I did.
…
Q You remember how he took his penis out of his pants?
ANo, I didn't see him take it. I was looking down because he had just kissed me and I was a bit shy and embarrassed so I was looking down and then when I looked up it was out.
…
QYesterday you told us about the incident in the office connecting LOTE6, you remember saying that?
A Yep.
Q Remember you said the accused gave you a quick peck kind of kiss?
A Mm-hmm.
Q Where did he kiss you?
A On the lips.
As appears from the cross-examination, AB was able to give little accompanying detail:
Q Do you say it was your Italian class he was teaching on that occasion?
A I don’t know, on that occasion.
Q You can’t say why you were there on that occasion?
A No.
Q You can’t say how you got in there?
A I walked in there.
Q Did you walk in there with [MC]?
A I don’t remember.
Q Did you walk in there after [MC]?
A I don’t remember.
Q Did you walk in there before [MC]?
A I don’t remember?
Q What were you doing before this alleged kiss?
A I don’t remember.
Q What did you do after this alleged kiss?
A Again I don’t remember.
Q What time of the day was it?
A I don’t remember.
Q Where were you supposed to be at that time?
A I don’t remember.
Later, there was further cross-examination along the same lines:
QOn this occasion when you say he produced his penis to you you say you just can’t remember the reason why you were in the office at all?
A Yes.
Q Do you think it unlikely or likely it was during the Italian class?
A I’m not sure.
QAnd you say that you don’t know how it was that you suddenly saw his penis, in other words you didn’t see him take his penis out of his trousers?
A Yes.
Q Why do you say that was, that you didn’t see that happen?
ABecause I was looking down at the time because he had just kissed me and I was shy, so I was looking down and then when I looked up it was out.
Q So you say he’s just kissed you?
A Yes.
QYou’re shy and you look down. When he kissed you he’d have to be close to you, yes?
…
AWell he was standing a little bit beyond the desk and then he stepped, he had his hands in his pockets, and he stepped in and gave me a quick peck and then stepped back again and I was embarrassed and that’s when I looked down.
Q How long after that do you say that he produced his penis to you?
A A few seconds, like maybe half a minute later or something. It was a short time.
QSo when you say you were looking down, were you looking down at your feet or something were you?
A Just down at my lap. I was leaning against the desk.
Q Did he or you say anything on this occasion?
A I don’t remember.
Q You don’t remember anything that was discussed?
A No, I don’t.
Q Was the door open or closed to the office?
A I don’t know.
Q Did you close the door to the office?
A No.
Q Did he close the door to the office?
A I don’t know, don’t think he did, but I don’t know.
QAnd you don’t know if the classroom next door was being used for a class at all at the time?
A No, I don’t know.
Q After he, you say, presented his penis to you, what did you do?
AI was a little bit taken aback, but I don’t remember the exact kind of chain of events, but I did end up holding it because he asked me to touch it and so I ended up holding it and that was about it. After a few seconds I stopped and that was the end of it.
Q Then what happened?
A I don’t remember.
Q Did you go to a class?
A I don’t remember.
Q Did you have books with you?
A I don’t remember.
Counts 2 to 4
It was the prosecution case that counts 2 to 4 all occurred in 2010, when AB was a year ten high school student, although it appears that AB was unsure as to the order of the events. As to count 3, AB stated that the appellant took out his penis, asked her to masturbate him and she did so with him ejaculating. As to count 2, AB stated that the appellant slid one hand into her underwear, felt her vagina, inserted one finger and moved it about. As to count 4, AB stated that the appellant took out his penis and she took it in her mouth for a short period. AB could not remember which of counts 2 and 4 occurred first.
The jury were not prepared to convict on any of these counts. It is to be observed that they constitute very different allegations to the allegation of a quick kiss in count 1 taken by itself but that they do approximate the seriousness of the allegation in count 1 that the appellant displayed his penis, an allegation that should have been regarded as a necessary accompanying feature of count 1.
Thus the appellant contends that the refusal of the jury to convict of any of counts 2 to 4 underlines the real possibility that the jury were not prepared to find that the appellant exposed his penis as alleged in relation to count 1 but may have convicted solely on the basis of the allegation of a quick kiss on the lips.
I now turn to the appellant’s contention that the jury would have considered the above course to be permissible on the basis of what they had been told by the prosecutor and the Judge.
The prosecution opening and closing addresses
In his opening address, the prosecutor stated:
While in the office the accused kissed the complainant and you’ll hear he then took his penis out and told her to touch it. The act of that kiss before he presented his penis is count 1 on the information that you’ve heard read out. (Emphasis added)
The prosecutor later stated:
Count 1, as can you see on the first page, it’s a count of aggravated indecent assault. This is the time, as I said, when the accused kissed the complainant and then presented his penis and asked her to touch it. The kiss is the act which is said to amount to an indecent assault. To prove this charge the prosecution must prove three elements; firstly, the accused assaulted the complainant. Any touching or handling amounts to an assault. A kiss amounts to an assault. The assault must also be unlawful. A way in which an assault can be lawful is when there is consent, however, in this trial a person below the age of 17 years cannot consent to an indecent assault, that won’t trouble you. The second element, the assault, must be accompanied by or occur in circumstances of indecency. Whether some acts are indecent may be a matter of taste but on the prosecution case the accused kissing a girl of that age can only be described as indecent. The third element is the aggravating element, that is that the accused abused a position of authority, namely as a teacher. (Emphasis added)
In his closing address, the prosecutor again stated: “… the act of kissing, I suggest, amounts to an aggravated indecent assault”.
The defence address
The appellant’s position has always been that none of the alleged events, including the kiss alleged in count 1, ever happened; understandably, his counsel never addressed the jury on the question of whether the appellant could be convicted on count 1 on the basis of a kiss alone, without the accompanying exposure of the penis. Rather, counsel simply addressed on the basis of the appellant’s instructions thus:
Please see it for what it is. It’s a bald allegation. If you heard an allegation like that, which you have, say to ourselves you hear ‘Such and such touched me in that room’, well you say ‘Tell me about how that happened?’ Well, she can’t and she won’t. Because you might think that the more she tells about the circumstances, the more that it’s necessary to scratch the surface and find out it didn’t happen.
The Judge’s summing up
His Honour directed the jury as to the elements of the crime of indecent assault and applied those directions to count 1 thus:
Dealing first with the offence of indecent assault. The law makes it an offence to indecently assault another person. An indecent assault is an assault accompanied by or committed in circumstances of indecency. The offence of indecent assault consists of two essential ingredients, each of which must be proven by the prosecution beyond reasonable doubt before an accused person can be found guilty of an offence.
The first ingredient is that the accused assaulted [AB]. An assault is the intentional and unlawful application of force or violence to another person. The application of force need not be great. Any deliberate touching or handling would be enough. The application of force need not cause any injury.
The application of force must be unlawful, that is without lawful justification such as consent. A child under the age of 18 cannot legally consent to an indecent assault by a teacher. The prosecution must prove that the complainant was under 18 at the time of the assault.
The second ingredient is that the assault must be accompanied by or occur in circumstances of indecency. The word ‘indecency’ is well known to all of us. It is a matter for you to determine by reference to reasonable contemporary standards whether the conduct you find proved in this case was indecent.
I have just mentioned that in certain circumstances if a person consents to being touched then that is not an unlawful touching and therefore not an assault. The law says that it is impossible for a person of the age of 18 or under to consent to an act of indecency with a teacher. Indeed, it would still be an offence even if it was proven that the person consented, so consent is not an issue in relation to the indecent assault charge in this case.
The offence becomes an aggravated offence if it is proven that the offender abused a position of trust or authority in committing the offence. If a person is a teacher you might think he is a person in a position of trust and authority.
It is the prosecution case that the accused kissed the complainant on the lips. Whilst it is a matter for you, you might have little difficulty deciding that, if proved, that was an application of force which could not be legally consented to if the complainant was under 18, which was indecent by contemporary standards. I remind you of course it is denied by the accused.
However neither counsel have suggested that the accused’s conduct in kissing the complainant on the mouth, if that is what he did, would not be an indecent assault in the circumstances of this case. Similarly, you might have little difficulty in concluding that as he was her teacher he was abusing his position of trust rendering it an aggravated offence. Again counsel do not dispute that. (Emphasis added)
His Honour later directed further as to count 1:
She has described an incident which is the allegation comprising count 1 on the information. She said that there was an instance in the office that is connected to the classroom, the one the stairs lead into. She said that in that office he kissed her, a quick kiss on the lips, that was the first time he kissed her in there and that he also presented his penis to her and asked her to touch it which she did.
…
She said that when he kissed her in the office there, it was on the mouth, and she looked down because she was feeling shy and embarrassed, and when she looked up again his penis was exposed. It is the prosecution case that that is an event that she can distinctly remember, over the course of a relationship that included a whole lot of other things, that was developing between [AB] and [MC].
[AB] said at about the time that had happened the touching in the computer room had already started and indeed the touching in the computer room continued on after that incident. So members of the jury, that kiss is count 1 on the information. The kiss on the lips by a teacher to a student. (Emphasis added)
The offence of indecent assault requires a sexual connotation
There is a great range of literature and case law on the meaning of words such as “indecent” and “obscene” but it is unnecessary to visit it. Suffice to say that the word “indecent” may mean different things in different contexts; and when it is used in a statute creating a criminal offence, its meaning may also vary according to the type of offence in question. Thus an offence of indecent assault requires an element of sexual lewdness[1] – often referred to as “a sexual connotation” – whereas an offence of indecent language may be satisfied by language that does not have that sexual connotation. However, it has always been clear that, in the context of the offence of “indecent assault”, the word “indecent” does require a sexual connotation. The central statement usually referred to is that of Windeyer J in Crowe v Graham:[2]
Let us turn to the words “obscene”, “indecent”. Each is a well-known word. Each has been long used in law. Apart from any definitions given them by statutes, they are both to be understood with the meanings they have for common law; and for present purposes each must be understood with any colour it takes by their collocation. I say this because the adjective “indecent” has long been used in law to describe multifarious forms of offensive or objectionable conduct. In this general sense it sometimes denotes lewd forms of misbehaviour, but not always. Indecent exposure, indecent assaults involve lewdness, indecent language does not: see eg Norley v Malthouse (1924) SASR 268. Brawling in church, maltreating corpses, grave-snatching have all been punished as indecent. Sometimes indecent conduct was punished at common law because it created a public nuisance. Sometimes simply as, in Lord Mansfield’s words, “against public decency and good manners”. The House of Lords has said that for the common law the list is not closed. (Emphasis added)
[1] The term “sexual lewdness” may be a tautology but I use it out of an abundance of caution. Certainly the authorities use the term lewdness in its true sense of requiring a sexual connotation, but the term “lewd” is used much less frequently than hitherto and it is best to state explicitly that what is required is a sexual connotation.
[2] (1968) 121 CLR 375, 390.
I briefly refer to some illustrative cases.
In R v Leeson, the defendant was convicted of indecent assault of a 13 year old girl. He asked her to have sex and she refused. He put his arm around her waist, his hand on her knee and kissed her about the neck and face, but went no further. As to whether the above conduct was sufficient to constitute an indecent assault, Diplock LJ (as he then was) stated:[3]
The definition of “indecent assault” which has long been accepted in these courts is an assault accompanied with circumstances of indecency on the part of the prisoner towards the person assaulted. This Court has no doubt that where an assault of this kind involving the kissing of a girl against her will is accompanied by suggestions that sexual intercourse should take place or that sex play should take place between them, the assault is an indecent one.
[3] (1968) 52 Cr App R 185, 187.
Similarly in the English Court of Appeal in R v Kilbourne, Lawton LJ delivering the judgment of the Court stated:[4]
One further point on the appeal against conviction requires consideration. The trial judge directed the jury as to what constituted an indecent assault in these terms: “It means a deliberate touching of somebody else’s body, clothed or unclothed, with an indecent intention. That is to say, a deliberate touching which is activated by some indecent purpose”. In our judgment, this direction was much too wide and could cover acts which were nothing more than preliminary steps towards committing an indecent assault, as for example, touching a woman’s hand.
[4] (1972) 56 Cr App R 828, 838. This case went to the House of Lords sub nom DPP v Kilbourne [1973] AC 729 on the question of corroboration but the present point was not before the House of Lords.
In the decision of the House of Lords in R v Court, the defendant was charged with the indecent assault of a 12 year old girl by spanking her buttocks for his sexual gratification. Lord Griffiths (with whom Lords Keith and Fraser agreed) stated:[5]
The gravamen of the offence of indecent assault is the element of indecency. It is this element of indecency that distinguishes the offence from common assault and makes it such a potentially serious offence carrying a maximum term of imprisonment of ten years. By indecency is meant conduct that right-thinking people will consider an affront to the sexual modesty of a woman. … [i]t is apparent that some extra mental element is required than that necessary for common assault. … It seems natural to me that this extra mental element should be that which constitutes the essence of the offence, namely, an intent to do something indecent to the woman in the sense of an affront to her sexual modesty or, in other words, an intent to do that which the jury find indecent.
[5] [1989] 1 AC 28, 33-34.
In R v Harkin,[6] a decision of the New South Wales Court of Criminal Appeal, the defendant was charged with the indecent assault of two 11 year old girls. The prosecution case was that he took the two girls driving on a bush track and allowed each girl in turn to steer the car whilst sitting on his lap. As to the first girl, he played with her breasts under her T-shirt, unzipped her jeans and put his hand in the area of her vagina. As to the second girl, he put his hand on her breasts, on the outside of her clothes. Lee CJ at CL (Wood and Mathews JJ agreeing) stated:[7]
It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas. Thus, if the appellant intentionally touched the breast of the girl Elizabeth, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent, and it is then for the jury to determine whether in the case of a mature man of 38 and a girl of 11 years and nine months that should or should not be regarded as conduct offending against the standards of decency in our community. The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.
[6] (1989) 38 A Crim R 296.
[7] (1989) 38 A Crim R 296, 301.
Lee J referred to the decision of the House of Lords in R v Court and stated:[8]
Their Lordships in that case, however, were dealing with a case of the spanking of a little girl by a man of 26 years of age and they expressed a view, which I would summarise in this way, that where the alleged assault is one which is equivocal, in the sense that it may have a sexual import or it may not, then before the assailant can be convicted it must be shown that he intended it to have a sexual connotation, that is to obtain sexual gratification from it. Such cases are far from the case before us here and I do not consider that it is necessary for us to examine them in any close detail. The two situations are plain and readily identifiable. In the present case the evidence which the jury could have accepted was that the appellant intentionally touched this girl’s breast and kept his hand there for some seconds. If they accepted that, then the only question left for them was whether such conduct in our community is to be regarded as indecent conduct between a man of that age and a girl of that age and they answered that question in the affirmative. In the result then, I am not satisfied that there has been any misdirection by his Honour in regard to the test to be applied in regard to either of the counts charged in the indictment.
[8] R v Harkin (1989) 38 A Crim R 296, 302.
The decision of the Victorian Court of Appeal in Sabet v The Queen[9] presents some factual parallels to the present case. The defendant, a medical practitioner, was charged with five counts of indecent assault and seven counts of rape of two of his female patients. The jury found him not guilty of all charges, except for one count of indecent assault in relation to the second woman. That offence was said to have occurred in circumstances where the complainant sought medical advice in relation to a possible pregnancy. She alleged that the applicant did a number of things which the prosecution alleged represented sexual offences, including the insertion of his fingers into her vagina on several occasions, an unnecessary examination of her breasts, and a procedure where he suggested to her that he would “crack her back” by wrapping his arms around her from behind and lifting her from the floor a number of times, during which she stated she could feel the applicant’s penis pushing into her back and buttocks. He was acquitted of each of the offences charged in relation to that conduct. At the conclusion of the consultation, when the complainant stood up to leave the surgery, she alleged – and the applicant agreed – that he put his arm around her back and kissed her on the right cheek. The ground of appeal asserted that the verdict was unsafe and unsatisfactory for the following related reasons:
(a) the evidence was insufficient to establish an assault in circumstances of indecency.
(b)the alleged circumstances of indecency that the trial judge put to the jury as capable of being relied upon were the subject of counts in respect of which the applicant was acquitted.
[9] [2011] VSCA 124.
It is to be noted that the trial Judge in R v Sabet had clearly and correctly directed the jury: “Now, indecent circumstances must have a sexual connotation. You apply your own community values, but indecent must have a sexual connotation”.
The court entered a verdict and judgment of acquittal. Lasry AJA (Ashley and Harper JJA agreeing) referred with approval to R v Harkin and then stated:
[14]In this case, in cross-examination on the circumstances surrounding the act in question, that being the applicant’s kiss, the complainant did not identify any feature of the kiss that had a sexual connotation deriving either from the manner of the kiss itself or any associated touching of the complainant’s body by the applicant. In cross-examination, the complainant noted that she and the applicant were both standing at the time and he kissed her on the cheek. The only other contact was his hand on her back and shoulder.
…
[16]In view of the acquittals on the other counts, my opinion is that there was no evidence that could now properly support a finding that the applicant had the intention of obtaining sexual gratification in kissing the complainant.
…
[19]Whilst it is important to give great weight to the jury’s findings on matters of fact, there are occasions where those findings may not be sufficiently supported by the evidence, correctly applied. In such circumstances, an appellate Court may consider that the jury ought also to have had a reasonable doubt about the evidence. The question is whether ‘upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.
[20]For reasons set out above, and on the evidence before the jury in respect of Count 12, I do not consider the jury could have been satisfied beyond reasonable doubt that the applicant was guilty of indecent assault.
[21]The gist of the evidence of the complainant was that the applicant’s kiss was unwelcome. However, circumstances of indecency have not been made out in this instance, as would support a verdict that the applicant was guilty of indecent assault. Having regard to the other verdicts, the jury must have had a reasonable doubt as to the applicant’s guilt on this particular count. (Emphasis added)
Discussion
Because the offence of indecent assault does require a sexual connotation, evidence said to be capable of constituting that element will inevitably be included within the prosecution case on such a charge. That being so, the directions in a Judge’s summings up as to “indecency” in such cases will usually be interpreted by the jury as referring to that sexual aspect of the evidence before them.[10] The present case would have appeared to conform to that usual pattern in that there was ample potential evidence of the necessary sexual connotation on count 1 by virtue of the allegation of the simultaneous exposure of the penis.
[10] Although I must say that in view of the authorities, it would be prudent to say something more explicit as to the need for sexual connotation.
However, the problem that has developed in this case is that one cannot be confident that the jury were satisfied that the appellant exposed his penis at the time of the kiss. The effect of the prosecutor’s addresses was to urge the jury that they could, and should, convict the appellant simply on the basis that the kiss was given by an adult school teacher to a 15 year old female student; at the very least, the jury was not unlikely to understand his remarks in that way. Obviously, it is the Judge’s summing up that is of primary importance but the prosecutor has a heavy responsibility to be accurate in his or her words to the jury. If a prosecutor misstates the position on an important matter, and the Judge directs in an equivocal way such as to leave open the misstated position, the result may well be that this Court will find that the jury have not been adequately directed.
The relevant parts of the summing up are reproduced above. The summing up, particularly taken against the background of the words of the prosecutor, had an unacceptable tendency to suggest to the jury that a conviction on count 1 could be founded on satisfaction that the “quick peck on the lips” had been established alone and without reference to any necessity for proof of a sexual connotation. The critical passage in the summing up is the following:
It is the prosecution case that the accused kissed the complainant on the lips. Whilst it is a matter for you, you might have little difficulty deciding that, if proved, that was an application of force which could not be legally consented to if the complainant was under 18, which was indecent by contemporary standards. I remind you of course it is denied by the accused.
However neither counsel have suggested that the accused’s conduct in kissing the complainant on the mouth, if that is what he did, would not be an indecent assault in the circumstances of this case. Similarly, you might have little difficulty in concluding that as he was her teacher he was abusing his position of trust rendering it an aggravated offence. Again counsel do not dispute that.
The Judge here has inadvertently fallen into a trap brought about by the following unusual set of circumstances. First, one would not have known in advance that the jury might be unable to return verdicts on counts 2 to 4 and might actively consider whether to convict on count 1 on the basis of satisfaction of only the kiss, but not of the exposure of the penis. Second, the prosecutor’s addresses actively enlivened that possibility. Third, his Honour’s directions must also be construed as leaving that possibility to the jury. This is so, not only because of the passage referred to above, but also because the Judge never specifically directed the jury that the offence of indecent assault requires a sexual connotation;[11] his Honour simply directed:
The word ‘indecency’ is well known to all of us. It is a matter for you to determine by reference to reasonable contemporary standards whether the conduct you find proved in this case was indecent.
[11] Unlike in Sabet where the jury were very clearly directed in that respect.
In the particular circumstances here, that direction may well have conveyed to the jury that the contemporary standards being referred to in the context of count 1 were to the effect that, as the prosecutor had actively contended, the accused kissing a girl of that age can only be described as “indecent”.[12]
[12] See also R v Bryant [1984] 2 Qd R 545; R v McBride [2008] QCA 412.
Finally, the failure of the jury to find that the appellant performed the acts constituting counts 2 to 4 – which were similar acts to the allegation of exposure of the penis in count 1 – underlines the possibility that the jury proceeded to a conviction on count 1 solely on the basis of the finding of a kiss alone.
The combination of the above circumstances has produced a miscarriage of justice in that one cannot be confident that the jury majority convicted the appellant on the basis of satisfaction beyond reasonable doubt that there was a sexual connotation to the kiss, as distinct from it merely being a non-sexual “quick peck on the lips” and with no other sexual conduct being established.
Disposition of the appeal
The appellant seeks judgment and verdict of acquittal on count 1. He contends that ground 7 of appeal is made out on a broader basis that the verdict is unreasonable within the meaning of the High Court decision in M v The Queen.[13]
[13] (1994) 181 CLR 487.
Having considered the whole of the evidence in the light of the precepts in M v The Queen, I am not prepared to find that such a ground of appeal is made out here. It is to be noted that the present case is quite different to that of R v Sabet in this respect. There, the evidence relied upon to establish the sexual connotation was the very evidence which was the subject of the counts of which the appellant was acquitted (all counts relating to the same consultation); thus, while the jury in R v Sabet were correctly directed that indecent circumstances must have a sexual connotation, their findings of not guilty on the other charges (which might otherwise have supplied that sexual connotation) meant that the conviction on the basis of the kiss alone was unreasonable.
By contrast here, count 1 was not reliant on acts alleged in other counts for the requisite sexual connotation as it was in R v Sabet. Here, the evidence of alleged exposure of the penis by the appellant at the time of the kiss was available to the jury; if the jury were satisfied beyond reasonable doubt that that occurred, it was certainly open for them to find the appellant guilty of count 1.
However, for the reasons stated above, there is substantial doubt as to whether the jury did proceed to their majority guilty verdict in a proper way and the verdict is therefore “unsafe” on the basis of the second of the two meanings of that term adumbrated by Gleeson CJ in Anderson v The Queen;[14] in effect, I would allow the appeal on the basis that the appellant has made out the miscarriage of justice that might have been made the subject of a more specific ground of appeal. The conviction on count 1 must be set aside.
[14] (1991) 53 A Crim R 421, 449. Chief Justice Gleeson of New South Wales (as he then was) there stated: “Although the Crown case against the appellant was one abounding with difficulties, some of them of the Crown’s own creation, but others more fundamental, and although it could not be described as a strong case, I do not conclude that it was not reasonably open to the jury, on the evidence before them, to decide that the appellant was guilty. Although there were numerous matters which might properly have caused them to have a doubt about the appellant’s guilt, it cannot be said that, acting reasonably, they were obliged to have such a doubt. In that respect, therefore, this ground of appeal is not made out. However, it is well-established that a Court of Criminal Appeal may treat a jury’s verdict as unsafe or unsatisfactory even if satisfied that it was, on the evidence, reasonably open to the jury to convict: eg Davies and Cody (1937) 57 CLR 170, 180; Carr (1988) 165 CLR 314; 35 A Crim R 387. Such a situation may arise if, to use the language of the former case, ‘it appears unjust or unsafe to allow [a] verdict to stand because some failure has occurred in observing the conditions which … are essential to a satisfactory trial.’”
I would allow the appeal and order a re-trial on count 1. Counts 2 to 4 may be re-tried because of the failure of the jury to agree on any verdicts.
Proposed orders
1That the conviction on count 1 is set aside.
2That there be a re-trial on count 1.
BLUE J. I agree.
STANLEY J. I would allow the appeal and set aside the conviction on count 1, and order a re-trial. I agree with the reasons of Peek J.
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