R v C P
[2000] VSCA 178
•13 September 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 344 of 1999
| THE QUEEN |
| v. |
| C.P. |
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JUDGES: | BROOKING, ORMISTON and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 September 2000 | |
DATE OF JUDGMENT: | 13 September 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 178 | |
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CRIMINAL LAW – Sexual offences involving child under 16 years – Verdicts of guilty on some counts and acquittal on others – Credibility of complainant as witness – Whether verdicts of guilty unsafe and unsatisfactory.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | P.C. Wood, Solicitor for |
| For the Applicant | Mr M.G. Perry | P. Mericka & Associates |
BROOKING, J.A.:
Chernov, J.A. will deliver the first judgment.
CHERNOV, J.A.:
On 22 November 1999, the applicant, who is now aged 46, was presented in the County Court at Melbourne upon a presentment containing 11 counts - six counts of an indecent act with a child, being his stepdaughter, aged under 16 years (counts 1 and 6 to 11); two counts of incest with his stepdaughter (counts 2 and 5) and two counts of indecent assault on her (counts 3 and 4). He pleaded not guilty to all counts. After a trial lasting some eight days, the jury returned a verdict of guilty on each of counts 1 and 7 to 11 and not guilty on the other counts. Following the hearing of a plea in mitigation, his Honour sentenced the applicant to a total effective term of three years and nine months' imprisonment and fixed a non-parole period of two years and six months.
The applicant now seeks leave to appeal against conviction on only one of the grounds set out in his notice of application, namely, ground 3. Under cover of that ground, it is claimed that the verdicts of guilty are unsafe and unsatisfactory in that:
(a) contrary to what the complainant said in a VATE interview which formed her evidence-in-chief, she had not complained to her mother about the applicant's alleged sexual abuse of her;
(b) the jury acquitted the applicant on counts 2 to 6;
(c) the complainant was unable to remember during her evidence-in-chief that she had alleged to Dr Wells, the police surgeon, that she had been subjected to digital vaginal penetration and anal penetration and the touching in the vicinity of the anus notwithstanding that she had made the complaint a day after her VATE interview during which no such complaint was made. Paragraph (b) of ground 3 as originally framed was abandoned.
The circumstances giving rise to the offence in question were as follows. The applicant came to this country from Poland in 1985 and since 1992 worked each night as a baker. In 1990 he formed a relationship with the complainant's mother, who was then a divorced woman, and, in about 1990, he commenced living with her and the complainant, who was then aged three-and-a-half, having been born on 12 January 1987. The applicant married the complainant's mother on 30 December 1992 and stayed with her until the couple separated in January 1998. The applicant's wife discouraged the complainant's natural father from seeing the complainant so that the applicant became a father figure in her life. They developed what seems to have been a sound and close relationship which, as events turned out, the applicant grossly abused.
On an occasion in 1995, when the complainant's mother was downstairs ironing at approximately 10 p.m., the applicant, who was in his upstairs bedroom with the complainant, persuaded her to masturbate him. He took off his underwear and showed the complainant what he wanted her to do and got her to masturbate him to ejaculation. Afterwards, he told her that she was a good girl. This incident constitutes the offence in count 1.
The complainant's evidence at the trial, the bulk of which was given by way of a VATE interview, was, inter alia, that sexual abuse of her by the applicant, including acts similar to those in count 1, occurred from 1995 onwards, approximately two or three times a week, until he left the matrimonial home in January 1998. During 1998 the mother made a number of attempts to try and get the applicant to return to the matrimonial home. The parties saw one another with some frequency and exchanged presents. In particular, the complainant gave the applicant a present for father's day and sent him a card endorsed in Polish (which was written by her mother).
On 28 or 29 December 1998 the complainant's natural father, having learned of the separation between his former wife and the applicant, resumed contact with the complainant whom he had not seen since her seventh birthday. During their conversation in a park, after swearing her father to secrecy, the complainant told him that the applicant had touched her on her vagina and that this had been going on since she was about eight years old. She said that she had spoken to her mother about this and that the mother said that she had discussed the matter with the applicant, who had promised to seek medical advice. The complainant also said that the reason why the mother had not reported these matters to the police was because she was worried that the community and the school would hear about it and point a finger at her. She said that her mother told her not to talk to anyone about it, not even to her best friends, and that she, the complainant, could report the matter to the police herself when she grew up. Notwithstanding his promise to keep what he had been told a secret, he contacted a social welfare group in January 1999.
In late January 1999 the complainant went back to school and her mother, who was by this time working full-time at a bank where she did not finish her day until approximately 5 p.m., asked the applicant, who lived close to the school in an air-conditioned house, to pick up the complainant after school and take her to his house. She would call for the complainant after she finished work. It was intended that this arrangement would last during the hot weather.
The complainant said that on an occasion which she could not date precisely other than to say that it happened between about 1 and 8 February 1999, the applicant picked her up from school at approximately 3.20 p.m. and took her to his home. He there undressed her and sought to put his penis into her vagina. She said he kept pressing the penis into her vagina and it felt like a lump, but in the end she said that "it did not happen". He told her that he would stop if she masturbated him. Consequently, she promised to do so. The applicant then stopped trying to vaginally penetrate the complainant and she proceeded to masturbate him. These occasions formed the basis of counts 2 and 3.
The events of 5 February 1999 formed the bases of counts 4, 5 and 6. Again the complainant was picked up from school by the applicant at approximately 3.20 p.m. on that day. He took her home. The complainant stated that in the living-room the applicant stripped her, sucked her breasts, kissed her and touched her vagina. These acts formed the basis of count 4. The complainant said that he also sought to commit a penile oral penetration by pressing his penis into her mouth. She said that she clenched her teeth and it is not clear on the material whether the penis penetrated her lips. This event formed the basis of count 5. The complainant further said that she was then taken to the applicant's bedroom where she was made to masturbate his penis until he ejaculated. That act formed the basis of count 6.
On 8 February 1999 the complainant said that she was again collected from school by the applicant and brought to his house. She stated that she watched television there for an hour-and-a-half after which the applicant came in and started touching her vagina. That formed the basis of count 7. He later undressed her and touched her breasts and vagina and took her to the bedroom, where he undressed himself and started touching more vigorously her breasts, sucking and shaking them. These events formed the basis of count 8.
On the following day, 9 February 1999, the complainant was again picked up from school by the applicant and brought to his home. While she was watching television, the set malfunctioned. She called for the applicant, who rectified it and then proceeded to touch her around the bottom and other regions as she lay on the floor on her stomach. He pinched her vagina and her bottom. These acts formed the basis of count 9. Later, the applicant repeated these acts, which formed the basis of count 10, and later still he again repeated his behaviour and this was the basis of count 11.
As a result of the approach to the police by the complainant's father, on 10 February 1999 Senior Constable Gowing attended the complainant's school and took her back to the police station where she proceeded to conduct the VATE interview with the complainant. In the course of the interview, the complainant told the police that the applicant had sexually assaulted her daily and that she had told her mother about the 1995 incident on the morning following the event. At the committal hearing and at the trial, however, the complainant retracted both assertions, although she maintained that she was assaulted by the applicant two or three times a week during the relevant period. Her mother's evidence was that no relevant complaints were made to her by the complainant.
On 11 February 1999 the complainant was examined by Dr Wells of the Victorian Institute of Forensic Medicine. His evidence was, inter alia, that the complainant alleged to him, in effect, that the applicant had digitally penetrated her vagina on three occasions, had touched her anus and had pressed his penis against her vagina on 20 to 30 occasions. None of this was told by the complainant to the police and it did not form the basis of any charges against the applicant.
The applicant was seen by the police on 15 February 1999. In his record of interview, which was conducted with the aid of a Polish interpreter, he acknowledged that he had assumed the role of the applicant's stepfather since she was about three years old and that he treated her as his own child. He said that at the beginning of the 1999 school year he was contacted by the complainant's mother, who made arrangements for him to pick up the complainant from school during the following few days. He denied any sexual impropriety on his part towards the complainant and claimed that the allegations were part of an attempt by his then wife to "set him up".
He stated that, during 1998 and in early 1999, he saw the complainant and her mother frequently. He said that in March 1998 his then wife came home and told him that she was pregnant but did not think he was the father. He arranged for the pregnancy to be terminated and, according to him, his wife told him that she would never forgive him for this and that she would make her revenge as hard as possible. Notwithstanding this, he had frequent contacts with the complainant and her mother, particularly towards the latter part of 1998 and early 1999. He admitted to collecting the complainant from school in early February 1999 but claimed that, other than on one occasion, he did not have her at his home without her mother also being present. He said that he generally took her after school to the Gladstone Park Shopping Centre, where the bank in which the mother worked was located. At the shopping centre he attended to some of his business and then waited with the complainant, usually at the games parlour, for the mother to finish work. On some occasions the three of them then went to his home.
In his succinct and helpful submissions, Mr Perry for the applicant argued that, given the totality of the evidence and taking into account the complainant's admission that she told lies (which were, he submitted, elaborate), a reasonable jury would entertain a reasonable doubt about the applicant's guilt on the counts in respect of which he was in fact convicted. Thus, he contended, the verdicts of guilty were unsafe and unsatisfactory. Mr Perry emphasised particularly the unreliability of the complainant as a witness. He pointed to the fact that at the outset of the committal proceedings, she retracted part of her evidence given during the VATE interview, and at the trial she admitted that she had lied on those issues. She also admitted that she had falsely told her father that she had complained to her mother about the applicant's relevant conduct. Mr Perry argued that the complainant did not simply lie; she skilfully told a set of elaborate untruths not only about her supposed complaints to her mother, but also about the mother's fictitious response. It was said by Mr Perry that it was obvious that the complainant was a person who would lie when it suited her purposes.
Another factor which was relied upon by Mr Perry to attack the complainant's credibility was her denial that she told Dr Wells about being digitally penetrated in her vagina and other matters. Moreover, said Mr Perry, none of that was related by the complainant to the police during the VATE interview, which took place on the day before she was examined by Dr Wells, nor were those matters the subject of any charges brought against the applicant or evidence at the trial. Mr Perry submitted that, having regard to those factors, the complainant was devoid of credibility and the remainder of her evidence was, in effect, worthless, or alternatively, it ought to be the subject of an independent assessment and evaluation by this Court.
Furthermore, said Mr Perry, the complainant's allegations were not supported by independent evidence and her complaint, when she first made it to her father, was years after the first event and was, in any event, in the most general of terms.
By way of contrast, it was said by Mr Perry, the applicant not only denied on oath the allegations of sexual misconduct with the complainant, but in respect of the alleged events of early February 1999, he explained in his evidence with some particularity his innocent conduct with the complainant at the shopping centre. In support of his case, he produced receipts from a Harvey Norman store, a liquor outlet and a post office, all of which are located at the shopping centre. The receipts were issued on the days in question and he tendered them as corroborating his evidence that he was at those locations (with the complainant).
Mr Perry further pointed out that, in her cross-examination, the complainant generally agreed with the applicant's evidence as to his movements with her at the shopping centre, and that the acquittals of the applicant on counts 2 to 6 were concerned with events in respect of which he was able to produce receipts to support his evidence of his whereabouts.
In the circumstances, and having regard to the totality of the evidence, it was said the jury ought to have entertained a reasonable doubt as to the applicant's guilt. Hence, Mr Perry contended, the verdicts of guilty are unsafe and unsatisfactory. He expressly disavowed, however, any reliance on the argument that the verdicts are inconsistent. Thus, the essential question is whether, having regard to the self-confessed lies which the complainant told the police and her father, her evidence as to what the applicant did to her is so lacking in credibility that, upon the whole of the evidence, it was not open to the jury to be satisfied that the applicant was guilty on counts 1 and 7 to 11. In answering that question, the constitutional role of the jury and the benefit they had of seeing and hearing the witnesses, particularly the complainant and the applicant, must be borne in mind (M. v. R[1]; R. v. Girgines[2]; R. v. Marziale[3]; Jones v. R.[4]; R. v. DPM[5]).
[1](1994) 181 C.L.R. 487 at 494-5 per Mason, C.J., Deane, Dawson and Toohey, JJ. with whom Gaudron, J. agreed at 508.
[2]Court of Appeal, unreported, 26 March 1996 per Callaway, J.A. at 24.
[3](Unreported, Court of Appeal, 18 April 1996 per President, Brooking, J.A. and Southwell, A.J.A. at 13-14.
[4](1997) 191 C.L.R.439 at 450.
[5][1998] 3 V.R. 705 at 713-714 per Charles, J.A. with whom Ormiston, J.A. and Harper, A.J.A. agreed.
In my view, it was open to the jury to conclude that, notwithstanding the complainant's lies and the nature of them, her evidence as to what the applicant did to her was credible and that, in all the circumstances, they were satisfied beyond reasonable doubt that the applicant was guilty on the relevant counts. The jury may have sensibly adopted one of two courses. They may have concluded that the complainant lied about her alleged complaint to her mother but, notwithstanding this, her evidence concerning the applicant's relevant conduct was credible. It was open to the jury to put the lies in the context of the complainant's age and the fact that she took part in the VATE interview without any meaningful preparation and that, in the circumstances, she felt a sense of apprehension, if not fear, about the process and was, to some extent, confused, particularly about her loyalty to her mother and her attitude to the applicant. At the first opportunity, however, namely, at the committal proceeding, she corrected the falsity and the jury may have regarded that as bolstering her credit. It must also be borne in mind that his Honour gave the jury clear instructions in his charge, that the question of the retraction by the complainant of what she told the police and her father went to her credit and that it was "very important" that they decide on her credibility. The jury was also reminded by his Honour that the mother had given evidence that the complainant made no such complaints. Thus, they must have had that issue in the forefront of their minds and must have resolved it relevantly in favour of the complainant.
Alternatively, the jury may have taken the view that the complainant told the truth to the police and to her father about her complaints to the mother, but was untruthful when she explained why she retracted her account of it. Indeed, in his charge, his Honour told the jury that such a finding would be open to them. Thus, the jury could have properly formed the view that the complainant had complained to her mother, but later retracted this in an effort to shield her from criticism that would follow if it were known that she knew of the applicant's conduct, yet did nothing to report the matter or give adequate protection to her daughter. In those circumstances, the jury may not have regarded her false explanation as to her retraction as damning the rest of her evidence.
Furthermore, his Honour's charge was fair. In addition to dealing with the matters to which I have referred, he gave the jury a strong warning that, inter alia, given the complainant's lies to the police, the fact that her complaint was late and that her evidence was uncorroborated, they should scrutinise her evidence closely and determine whether it was reliable and whether they were prepared to act on it. His Honour emphasised that the complainant's evidence was critical; it was central to the Crown case and the attack on it was central to the conduct of the defence. His Honour told the jury in standard terms that it was dangerous to convict the applicant on such evidence. In the circumstances, therefore, the jury was, in effect, told by his Honour to consider carefully the "potential frailty" of the complainant's evidence (R. v. Arundell[6]).
[6][1999] 2 V.R. 228 at 238 per Tadgell, J.A.
As to the applicant's evidence of his conduct with the complainant in early February 1999, it is true that there was little disagreement between his evidence and that of the complainant as to their visits to the various places at the shopping centre and their meeting with the mother after her work, and to that extent, the applicant's credibility could be said to have been bolstered. But none of that evidence was directly relevant to the issue of whether, immediately after picking up the complainant from school, the applicant took her home and there sexually abused her as the complainant asserted and only thereafter drove her to the shopping centre, where they conducted themselves generally as he had described. It was acknowledged by Mr Perry, properly, I think, that the applicant's evidence about the events in the shopping centre did not deprive the applicant of the opportunity of engaging in the sexual conduct complained of, although he maintained, of course, that such conduct was denied by the applicant.
Moreover, the applicant's acquittal on several counts does not necessarily reflect on the applicant's credibility. The verdicts probably reflect more the state of the evidence and giving the applicant the benefit of the doubt, rather than the existence of the receipts which the applicant tendered as corroborating his evidence. In that context, it should be noted that in respect of the incest counts, his Honour directed the jury that, before they could convict the applicant, they had to be satisfied beyond reasonable doubt that there was a relevant penetration. So far as count 2 is concerned, the complainant's evidence fell short of establishing penile vaginal penetration, so that an acquittal on that count is understandable whereas a conviction may have been difficult to sustain. Count 3, the forced masturbation of the applicant, was temporally connected with count 2 and since that count was not made out, the jury might well have given the applicant the benefit of the doubt with respect to count 3.
As to counts 4, 5 and 6 which allegedly took place on 5 February 1999, the jury may not have been satisfied beyond reasonable doubt as to the incest count, count 5, because of the unsatisfactory state of the evidence as to the penile penetration of the complainant's mouth. The other two counts were temporally related to it and, again, the jury may have given the applicant the benefit of the doubt in relation to them.
Thus, the jury's verdicts of acquittal are reasonably explicable without reference to the receipts that the applicant produced and to which reference was made earlier.
Consequently, notwithstanding Mr Perry's logical argument, I have come to the conclusion that the jury verdicts on counts 1 and 7 to 11 are not unsafe and unsatisfactory. Thus, in my view, the application should be dismissed.
BROOKING, J.A.:
I agree.
ORMISTON, J.A.:
I likewise agree.
BROOKING, J.A.:
The application is dismissed.
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