R v Castles

[2007] VSC 561

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1480 of 2007

THE QUEEN

v

SHAUN PETER MAXWELL CASTLES

---

JUDGE:	BONGIORNO J
WHERE HELD:	Ballarat
DATE OF HEARING:	26 November 2007
DATE OF RULING:	26 November 2007
CASE MAY BE CITED AS:	R v Castles (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2007] VSC 561

---

CRIMINAL LAW – Presentment – Rape count – Penile penetration – Other forms of penetration – Duplicity on the one count – Statutory interpretation – s 35, s 38 Crimes Act1958 – Romeyko v Samuels (1972) 2 SASR 529; DPP v Merriman [1973] AC 584.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Jones	OPP
For the Defendant	Mr T. Danos	Mike Wardell

HIS HONOUR:

1. Shaun Peter Maxwell Castles has been presented by the Director of Public Prosecutions on a three count presentment alleging three serious offences against Theresa Marie Cliff of attempted murder, intentionally causing serious injury and rape. However, on an even cursory look at the depositional material filed on this presentment, it is clear that the prosecutor has misstated the name of the victim of these alleged crimes.  In fact, Theresa Marie Cliff is a witness, not the alleged victim, whose name is Roslyn Elizabeth Withers.

1. At the commencement of the trial this morning, the prosecutor Mr Jones sought to amend the presentment to reflect the Crown’s true case in this respect. Counsel for the accused conceded that the application came as no surprise to him. He did not oppose it. It was granted pursuant to s 372(1) of the Crimes Act 1958.

1. A second problem in the presentment identified by the prosecutor could not be so easily dealt with.  The depositions, by which the evidence to be led in this trial is put on the record, include, as might be expected, material going to the issue of sexual penetration of the victim.

1. That material however, appears to lack specificity, as to the manner of such penetration.  The victim herself is unable to throw any light on the issue and the medical evidence is equivocal as to what actual object penetrated the victim’s vagina in the course of the alleged rape, forming the basis of Count 3 on the presentment. That evidence goes no further than establishing what was described by a forensic physician as “recent blunt vaginal penetration causing bruising”. She said such penetration could have been by “fingers, a penis or another (sic) inanimate object.”

1. Count 3 on the presentment alleges what would have once been called rape at common law: that is to say, penile vaginal penetration without consent.  Clearly the Crown could not establish that case on the available evidence.

1. It appears this situation became apparent to the prosecutor some time over the weekend, so that this morning he sought a second amendment to the presentment to recast the third count to allege penetration by the accused of the vagina of the victim, using his penis, a part of his body or some other object, thus widening the scope of the allegation so that the available evidence, if accepted, would be sufficient to establish the commission of the crime.

1. No notice of intention to make this application was given to the defence and no reference was made by Mr Jones to any authority on the procedural problems which might be created by the application being granted at this late stage of the proceeding. Accordingly, on an application by the accused, the court adjourned the further hearing of the prosecutor’s application for two hours to enable the necessary research to be undertaken.

1. Before the matter was adjourned however, Mr Jones put the substance of his argument as to why the amendment ought to be allowed. In essence he submitted that the offence upon which the accused is being presented is sexual penetration without consent, an offence which exists independently of any allegation as to the object with which such penetration is effected. He pointed to s 38 of the Crimes Act 1958 which creates the now statutory offence of rape as sexual penetration without consent, leaving aside a variance concerned with compelling a person to penetrate himself, herself, the offender or another person which are irrelevant for present purposes. He submitted that the definition of sexual penetration in s 35 does not create an offence, it simply defines one of the elements of the s 38 offence in a number of different ways.

1. Framing the count as he now wishes to frame it does no more than particularise the Crown case, he submitted, just as the unamended count did in somewhat narrower terms. It is the same offence, particularised more widely. Instead of notifying the accused that he must answer a charge of placing his penis inside the victim’s vagina without consent, he is now notified that he has to answer a charge of having inserted something into the victim’s vagina without consent, that something being included within the definition in s 35 of the Act, thus went the Crown argument.

1. Mr Danos for the accused submitted that if the amendment is allowed, the jury will be confronted with an impossible task.  They will have to try to work out what happened, when there will be three possibilities open.  This could lead, said Mr Danos, to the possibility of a verdict in which all jurors were not necessarily agreed, some choosing one method of penetration, the others choosing another or even a third. Further, said Mr Danos, “How would the court reach a proper basis for sentencing?  What form of penetration would be being punished?”

1. Mr Danos referred to R v Kingswell[1], a case in which the High Court of Australia considered a Federal drug statute and whether a particular circumstance of aggravation which would increase a penalty thereby created a separate offence.  The question in issue was whether the existence of the aggravating factor should be determined by the judge or by a jury so as to comply with s 80 of the Australian Constitution.  I think this case does not assist me significantly in determining the issue I have to determine.

   [1](1985) 159 CLR 264.

1. The only basis upon which the accused can successfully oppose the prosecutor’s application, as distinct from obtaining procedural relief because of late notice, surprise or the like, is that the amended count will be duplicitous, that is to say it will charge more than one offence, so that the accused does not know what case he has to meet. This question is largely a matter of statutory interpretation: did Parliament create one offence of sexual penetration or one for each method referred to in the definition of “sexual penetration” in s 35 of the Act.

1. In Romeyko v Samuels,[2] Bray CJ dealt with this problem.  His Honour said:

The true distinction, broadly speaking it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and the statute which penalises one act if it possesses one or more forbidden characteristics. 

In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course there will always be borderline cases and if it is clear that Parliament intended several offences to be committed, if the act in question possesses more than one of the forbidden characteristics, that result will follow.

[2](1972) 2 SASR 529 at 552.

1. Bray CJ’s analysis was followed in R v Manwaring[3] in which the New South Wales Court of Appeal was considering the offence of abduction with intent to marry or carnally know.  In that circumstance, because of the wording of the particular sections involved, the court found that there were two offences: one was abduction with intent to marry or carnally a woman, and one was abduction with intent to cause a woman to marry or carnally know someone else.  The court considered in that case that an indictment which simply presented the alternatives in one count was duplicitous because the original statute created two offences and not one. Bray CJ’s analysis was also followed in R v Judge Hassett.[4]

   [3][1983] 2 NSWLR 82.

   [4](1994) 76 A Crim R 19.

1. The rule concerning duplicity was described by Diplock LJ in DPP v Merriman[5] as requiring application in a practical rather than a strictly analytical way.  His Lordship said:[6]

The rule against duplicity, that is to say that only one offence should be charged in any count of an indictment ….. has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constitutes one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal purpose, it was the practice as early as the 18th Century to charge them in a single count on an indictment.

[5][1973] AC 584.

[6]Ibid, 607.

1. Turning then to this offence. It is created by s 38 of the Crimes Act which creates a number of different offences; but all of these offences involve sexual penetration which in s 35 has been given a definition which permits it to be relevantly performed in a number of different ways.

1. Applying the practical advice of Diplock LJ and the legal analysis of Bray CJ to the present problem, it seems to me that to allege an act of sexual penetration, as is sought to be effected in this case by the amendment proposed by the prosecutor, is to allege only one offence. To particularise the method of penetration by reference to three of the possibilities created by s 35 is to do no more than to advise the accused that the Crown will prove a penetration within the meaning of s 35 of the Act but will not be able to prove any particular characteristic of such penetration as it might be able to do in another case.

1. Thus, no duplicity or uncertainty arises. The accused is not embarrassed in his defence to such a charge and the jury will be directed that the element of which they must be satisfied beyond reasonable doubt (and unanimously) is that the accused committed an act of sexual penetration. How he did so is not an element of the offence charged and is therefore not a matter upon which the jury must be unanimous. It will be sufficient that each juror reaches the verdict referred to, whether he or she could determine whether any particular characteristic of sexual penetration, as described in s 35, was or was not present when the penetration occurred.

1. The sentencing problem referred to by Mr Danos does not exist. The trial judge must determine relevant sentencing facts as in any other case to the standard required by law for aggravating or mitigating facts respectively.  If those facts cannot be determined beyond the jury’s verdict, the accused must be sentenced accordingly - that is to say, on the view of the facts most favourable to him.

1. In the circumstances the amendment sought by the prosecutor will be permitted.