R v Crosbie
[2005] VSCA 247
•24 October 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 47 of 2004
| THE QUEEN |
| v. |
| SHANE MATTHEW CROSBIE |
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JUDGES: | CHERNOV and NETTLE, JJ.A. and HARPER, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 September 2005 | |
DATE OF JUDGMENT: | 24 October 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 247 | |
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Criminal law – Rape - Indecent assault of child under 16 years - Stalking - Taking away a child – Whether police record of interview concerning stalking can be properly used when considering sexual offences – Multiple counts – One complainant – No uncharged acts alleged – Separate consideration direction given – No propensity warning required – Prior inconsistent statements – Whether jury adequately directed as to use of prior inconsistent statements – Lie – Consciousness of guilt – Crown did not rely on lie as implied admission of guilt – Edwards-type direction not required – Application for leave to appeal against conviction refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs. C.M. Quin | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mrs. J. Dixon | Victoria Legal Aid |
CHERNOV, J.A.:
On 28 January 2004, after a trial in the County Court at Melbourne that lasted seven sitting days, the applicant, who is now aged 41 years, was convicted by a jury of the following ten counts, to which he had pleaded not guilty, namely, two counts of committing an indecent act with a child under 16 years,[1] six counts of rape,[2] one count of stalking[3] and one count of taking away a child.[4] The presentment also preferred against him, by way of alternative to the six counts of rape, six counts of sexual penetration of a child under 16.[5] In the event, no verdict was taken in respect of the latter counts given the jury’s finding of guilt on each rape count. The maximum custodial penalties for the respective offences are: performing an indecent act with a child under 16 years of age and stalking - ten years; rape - 25 years; and taking away a child - five years. On 29 January 2004, the learned sentencing judge heard a plea for leniency made on the applicant’s behalf, in the course of which he admitted 16 prior convictions from seven Magistrates’ Court appearances, including two convictions in 1993 for taking part in an act of sexual penetration with a child aged under 10 years. On 5 March 2004, his Honour imposed a total effective sentence of nine years and nine months’ imprisonment and ordered that the applicant serve a minimum term of seven years’ imprisonment before he could be eligible for parole.
[1]Counts 1 and 4.
[2]Counts 2, 5, 7, 9, 11 and 13.
[3]Count 15.
[4]Count 16.
[5]Counts 3, 6, 8, 10, 12 and 14.
By notice filed on 19 March 2004, the applicant seeks leave to appeal against the convictions. The sole ground stated in the notice is that the jury’s verdicts are unsafe and unsatisfactory, particularly having regard to the inconsistent evidence given by the complainant and his mother. On 31 August 2005, counsel for the applicant filed a notice of intention to add six further grounds. Before us, Ms Dixon, for the applicant, sought leave to amend the notice accordingly. We gave counsel leave to argue the proposed grounds, but reserved the question whether to grant leave to amend, to be determined at the same time as the application for leave to appeal. Before considering the various arguments put forward on the applicant’s behalf it is necessary to describe briefly the circumstances of the offending.
Circumstances of offending
The eight sexual offences[6] of which the applicant was convicted were committed between early 2002 and May of that year against the complainant, BS, who was then aged between ten and eleven years. These offences occurred on four separate occasions and took place at the applicant’s home. The offence of stalking, which was the subject of count 15, took place between about May and August 2002, notwithstanding that, in about late April or early May 2002, the complainant’s mother requested the applicant not to have any contact with her son, and despite the fact that an intervention order to this effect was obtained by her on 20 June 2002. Finally, on 20 August 2002, the applicant unlawfully took BS out of the possession of his mother.
[6]Namely, six counts of rape and two counts of performing an indecent act with a child under the age of 16 years.
The relationship between the applicant and BS commenced in January 2002, when the applicant met and befriended him whilst they were both working at a local shopping centre. The applicant was employed by a supermarket to collect shopping trolleys and the complainant was working at a nearby car wash station that was owned by a relative in order to earn some money during his school holidays. The applicant introduced himself to the boy and told him about the go-carts and mini motorcycles that he owned, saying that he would take him go-carting and motorbike riding if he wanted. At this time, the complainant was in the part-time care of the Department of Human Services (“DHS”) as a result of his behavioural problems, which included sniffing glue and chrome-based paints. On a few occasions he had run away from home and, in 2000, he was expelled from primary school for vandalism. The complainant confided in the applicant about the problems he said he was experiencing at school and at home and told him of his frequent arguments with his mother, who had separated from his father. Soon after meeting BS, the applicant introduced himself to his mother who, at first, viewed the applicant as somebody with a genuine interest in the welfare of her son and, as a result, permitted the complainant and his younger brother to stay at the applicant’s home overnight so that he could take the boys go-carting and motorbike riding on the following day. The applicant also introduced the complainant to members of his own family, including his sister and his nephews.
Sexual offending
As I have noted, the sexual offences were committed by the applicant on four separate occasions when the complainant stayed with him at his home overnight. The first offending took place in about March 2002, when the complainant, his younger brother and the applicant’s nephew were staying at the applicant’s unit overnight. In the course of the evening, the complainant fell asleep on the applicant’s bed while watching television. He was woken when the applicant, who was then naked, jumped onto the bed and asked him if he “wanted to play.” The applicant then squeezed the complainant’s penis and testicles tightly through his boxer shorts, hurting him. He placed a condom on his penis and pulled the boy’s boxer shorts down to his knees, pulled the child’s buttocks apart and inserted his penis into his anus. BS squeezed his buttocks together tightly in an effort to prevent the applicant from further penetrating his anus. The applicant then rolled the complainant onto his back and began to lick his chest and ears. The next day, the applicant took the complainant and the two other boys motorbike riding.
The second set of offending conduct took place approximately one month later, also at the applicant’s home. On this occasion, the applicant had driven to the complainant’s home and, with his mother’s permission, collected him for the purpose of taking him go-carting for the day. During the evening, the applicant took the complainant into his bedroom and told him that he would hurt him if he tried to leave. He removed the complainant’s clothes and tied his wrists and feet with a single piece of rope that was long enough to enable the boy to stand up straight and walk relatively freely. The applicant then lay down on his back and told the complainant to sit on top of him. He positioned himself so as to insert his penis, which was not covered by a condom, into the complainant’s anus, but the complainant tightened his buttocks, which prevented the applicant from continuing further with the penetration. The complainant then rolled off the applicant. Later, the applicant forced the complainant to suck his penis, telling him not to bite it but to “just go up and down.” On the following day, he took the complainant motor scooter riding and go-carting.
The next offending occurred in the following circumstances. The applicant collected the complainant in his car from a McDonald’s restaurant in Altona, where the boy had been with his mother, and drove him to his home. The boy fell asleep on the applicant’s couch in the living room. The applicant woke him at approximately 7 p.m. and took him into his bedroom. First, he instructed BS to open his mouth and suck his penis. The complainant said that this lasted for approximately an hour, during which the applicant pulled at his hair and punched him lightly to the face in a joking manner but nevertheless hurting him. At some stage the applicant removed the complainant’s clothes as well as his own. The applicant then forcibly inserted his penis into the complainant’s anus, telling him not to resist or else he would hurt him. Out of fear, BS did not resist. After this offence was committed, the complainant returned to the applicant’s living room and went to sleep on the couch.
The fourth sexual offending, oral rape, was committed by the applicant after he brought the complainant to his home following their dinner at a Kentucky Fried Chicken outlet. The complainant fell asleep on the applicant’s couch. He said that, at approximately 6 a.m., the applicant woke him, saying it was “sucky-sucky time”. He began playing a video called “Samurai Jack” on his television, sitting with the complainant on the couch to watch it. During the screening of the video, the applicant said “Samurai Jack, suck my sack” and told the complainant to suck his penis. He threatened the boy, saying “remember what I said last time, hurty-hurty.” The complainant complied with the applicant’s demand and, thus, sucked his penis repeatedly, each time for approximately two minutes. The applicant was laughing during this conduct.
Stalking
In about April 2002, the complainant’s mother became concerned by the amount of attention that the applicant was paying to her son. Initially, she believed that he was attempting to undermine her authority as a mother, but later formed the view that something untoward might be happening. The complainant was then in the part-time care of DHS so she contacted its officers to seek guidance about her concerns. Their advice was that the applicant was not an appropriate person with whom her son should associate. In the event, not long after the complainant’s birthday, which was on 25 April 2002, she told the applicant that she did not want him to have any contact her son. But the applicant effectively ignored her instructions and continued telephoning the complainant on the mobile telephone that he had given him as a birthday present. He also sent him text messages. The telephone records that were tendered in evidence disclosed that it was not uncommon for the applicant to telephone the complainant two or three times a day and he continued to contact the boy in this way until his mother confiscated the telephone. He also began to follow the complainant or arrive at places where he knew BS would be. He left presents for the boy, including money, marijuana and cigarettes, in a canister that he hid in the branches of a tree in a park near the complainant’s home, which BS knew about. The complainant estimated that, over the period, the applicant gave him a total of approximately $60 as well as up to five cigarettes each week. The applicant also left written notes in the canister, some of which were written on pieces of paper but others of which were written on five dollar notes and along the length of cigarettes. Three examples of the notes left by the applicant were tendered in evidence. They included reminders to the complainant to turn on his mobile telephone as well as pleas for the complainant to call him at his home. Some of the notes tendered expressed the applicant’s love for the complainant.
As a result of the applicant’s above conduct, on 20 June 2002, the complainant’s mother obtained the intervention order to which I have referred but, as I have noted, the applicant continued to make contact with the boy. The complainant’s mother gave evidence at the trial that the applicant drove past her house regularly, looking towards it, and that, on one occasion, she saw him sitting in his car outside. The complainant also said that he had seen the applicant sitting in his car waiting outside his home for hours on end and that, on two occasions, he felt threatened when the applicant approached him. On the first such occasion, the complainant said he was walking over a footbridge on his way to a friend’s house when the applicant appeared and backed him into a corner. On the second occasion, he was with his brother at a petrol station and the applicant “appeared out of nowhere” in his car, jumping out of it and loudly calling his name.
On 5 July 2002, the applicant was interviewed by the police in relation to his continuing contact with BS. In essence, he claimed that his relationship with the boy was one where he sought to be his mentor and friend and assist him to overcome his behavioural problems and the difficulties he was experiencing at home. Although the applicant did not give evidence at his trial, his case was based on a denial of any wrongdoing in relation to the complainant and the claim that their relationship was as he had described in his record of interview.[7]
[7]I note for completeness that, although the applicant was interviewed by the police on two subsequent occasions in relation to the alleged offences of child stealing and the sexual offences, he made no comment answers.
Taking a child
On 20 August 2002, the applicant drove up to the complainant in his car whilst the boy was walking towards his home and asked him if he wanted to go for a drive. The complainant agreed and the applicant took him to his home where he stayed for hours, playing video games as well as looking at the applicant’s mini motorcycles and go-carts. No sexual conduct took place on that occasion. The complainant’s mother had alerted the police to his absence and when they attended the applicant’s unit and asked if BS was in the house, the applicant lied to them, claiming that the boy was not there. When they searched the house, however, the police found the complainant hiding in a broom cupboard, which he had entered at the applicant’s instruction upon the police arriving. This conduct formed the basis of count 16, taking a child out of the possession and against the will of his parent or guardian, namely, his mother.
I now turn to the ground and proposed grounds on which the application for leave is based and deal with them in the order in which they were argued.
Proposed grounds 2 and 3 - inadequate direction as to use of stalking and child stealing evidence and failure to give propensity warning
Grounds 2 and 3 were argued together. Under cover of these grounds Ms Dixon contended, first, that his Honour erred by effectively telling the jury that they could have regard to the evidence relating to stalking and child stealing when considering the earlier sexual offence counts and, secondly, that his Honour failed to give the jury a propensity warning in respect of the evidence led by the Crown for the purpose of establishing the nature of the sexual relationship between the applicant and the complainant in circumstances where such a warning was required.
In relation to the first complaint, it is plain that his Honour did not, in terms, direct the jury as counsel contended. There is no passage in his Honour’s charge to that effect. That is not surprising, given that the Crown did not allege that the applicant had a guilty passion for the boy during the period of stalking or on 20 August when he took him to his home, or that any actual or attempted sexual offending took place at that time. The Crown case was that, during the period of sexual offending, the applicant had a guilty passion for the complainant and that afterwards he developed an obsession to continue his contact with him at all costs and it was in the latter context that the last two offences were committed.
Ms Dixon, however, argued that the jury would or might have inferred from the following matters in his Honour’s charge that they could have regard to the evidence relating to counts 15 and 16 when considering the earlier charges. It was further said that, in any event, his Honour failed to direct the jury adequately as to the limited use they could make of the evidence relating to counts 15 and 16. The matters in his Honour’s charge on which counsel relied as giving rise to the claimed risk of such an inference being drawn were these. First, it was claimed, his Honour wrongly characterised the evidence of stalking and child stealing “as capable of being viewed as evidence of guilty passion by the applicant for the complainant and an obsessive attraction [that was] maintained by [him] for the [boy].” It was next said that the jury were wrongly instructed to consider the sexual counts against the background of all the evidence. Importantly, counsel argued, his Honour directed the jury that the applicant’s record of interview of 5 July 2002, which was concerned only with events relating to the stalking count, could be used by them for purposes broader than just the consideration of that charge. It could be used, said his Honour, “... to give ... some insight in relation to the relationship that existed between the complainant and the [applicant]”. Ms Dixon submitted that, in these circumstances, the jury would or might have understood the judge’s charge as inviting them to take into account (impermissibly) the record of interview and the evidence that related to the last two counts, for the purpose of determining the sexual charges. By giving such directions, said counsel, his Honour contradicted or undermined the earlier separate consideration warning that he had given to the jury.
In my view, these submissions should be rejected. The passages to which Ms Dixon pointed, when read in context, do not contain any error and do not give rise to the inference for which counsel contended. More particularly, I consider that his Honour did not wrongly characterise the evidence as counsel contended. There is no passage in the charge where his Honour says that the evidence on the first two counts was capable of being viewed as evidence of guilty passion by the applicant for the complainant. It seems that counsel was referring in this regard to that part of his Honour’s charge where he said, in the course of summarising the applicant’s case, that the applicant denied that he stalked BS or took him away and maintained that his interest in the boy was that of an adult mentor rather than that of a person who developed a guilty passion for him “and [who] later [formed] an obsession ... such that he would not take no for an answer in relation to contact with the boy”. His Honour made it clear that it was for the jury to determine these questions, including what was the relationship between the two. None of this amounts to the “characterisation” for which counsel contended. Furthermore, the context in which his Honour told the jury that they were to consider the sexual counts against the background of all the evidence makes it apparent that the “background” to which his Honour was referring was the relationship between the applicant and the complainant during the time of the sexual offending and, importantly, to the evidence that was adverse to the complainant’s credibility which his Honour summarised for the jury. It should be borne in mind that it was common ground that the relationship between the applicant and the complainant was relevant to the jury’s consideration of the sexual counts. Given that the applicant did not give evidence, but essentially relied on his record of interview to mount the case that his true relationship with BS was that of a friend and mentor to a wayward child, it was appropriate for his Honour to instruct the jury, which he did on two occasions, that they could use the record of interview to assess what was “the nature of the relationship that existed between the [applicant and the complainant]”.
There is also no merit in the claim that his Honour failed to explain sufficiently to the jury the limited use they could make of the evidence relating to counts 15 and 16 when considering the sexual offending charges. On the contrary, the learned trial judge gave the jury a full and separate consideration direction in respect of each count on the presentment. They were told that they were effectively dealing with “sixteen trials in one trial” and that they were to consider separately the evidence and issues relating to each count and make “independent decisions in respect of each of [them].” And his Honour later summarised, comprehensively, the evidence that related to each count.
Consequently, I think that the first complaint should be dismissed.
Turning now to the second complaint raised by counsel, I consider that, in the circumstances of this case, there was no obligation on his Honour to give a propensity warning. I note in passing that the applicant’s trial counsel could not have considered that one was called for, given that no such direction was sought by him.
Be that as it may, the essential reason why I think that no such direction was required is because the risk of a miscarriage of justice, to which any propensity warning would be directed, was not present in this case. More particularly, I consider that, given the following circumstances, there was no real likelihood that the jury might have engaged in impermissible propensity reasoning based on the evidence of the applicant’s sexual offending. First, the Crown did not rely on that evidence as demonstrating a propensity on his part to engage in sexual conduct of the kind charged. Rather, the evidence was led to establish that an improper sexual relationship or guilty passion existed between the applicant and BS at the time of the sexual offending. Such a relationship was, as I have noted, a relevant context in which the jury were to consider each sexual count. Secondly, the judge gave the jury a strong and clear separate consideration direction. Thirdly, no uncharged acts were alleged against the applicant.[8] A propensity warning should be given where uncharged acts are relied on by the Crown to establish, for example, an improper relationship between the applicant and the complainant, because there is a risk that the jury might reason, on the basis of the extraneous conduct, that the applicant is the sort of person who was likely to have committed the offences charged.[9] But where, as here, no uncharged acts are alleged and the Crown does not rely on the evidence in question as propensity evidence and the jury is given an appropriate separate consideration direction, there is no real risk that they might engage in such impermissive reasoning. Therefore, a direction against such reasoning is not required - this position has been recognised in a number of cases, including, for example, R. v. J (No.2)[10]; R. v. TJB[11]; R. v. Arundell[12] and R. v. DCC [13]. It follows that the judge did not err by not giving the jury the warning contended for by counsel.
[8]I note for completeness that the record of interview could not be said to amount to evidence of such conduct – see R. v. Arundell [1999] 2 V.R. 228 at 250 per Callaway, J.A.
[9]See, for example, R. v. Vonarx [1999] 3 V.R. 618 at 624-625 per Winneke, P., Callaway, J.A. and Southwell, A.J. A; R. v. Grech [1997] 2 V.R. 609 at 614 per Callaway, J.A.; BRS v. The Queen (1997) 191 C.L.R. 275; R. v. TJB [1998] 4 V.R. 621 at 633 per Callaway, J.A.; and R. v. DCC (2004) 15 A.Crim.R. 403 at 405-406 per Callaway, J.A.
[10][1998] 3 V.R. 602 at 614 per Winneke, P. and Charles, J.A. and 638-643 per Callaway, J.A.
[11][1998] 4 V.R. 621 at 633 per Callaway, J.A.
[12]At 250 per Callaway, J.A. with whom Charles, J.A. agreed.
[13]At 405 per Callaway, J.A.
I mention for completeness that I also cannot accept counsel’s claim that his Honour erred by failing to tell the jury that the last two counts involved no sexual impropriety by the applicant. That was obvious on the facts before them and was, in any event, explained by the Crown in its opening.
Consequently, I think that proposed grounds 2 and 3 should be rejected.
Proposed ground 4 – prior inconsistent statements
Under cover of proposed ground 4 the applicant claimed that his Honour failed to direct the jury sufficiently, particularly in his redirection, as to how they could properly use the complainant’s prior inconsistent statements in their deliberations. Not surprisingly, the defence case focused essentially on the credibility of the complainant and, to a lesser extent, that of his mother. As Ms Dixon said, “the kernel of the applicant’s defence was that the complainant was unruly, immature and unreliable”. The defence case below was that the complainant’s mother had “put him up” to making the allegations in question and that he pressed them only after being taunted at school and because he was apprehended at the applicant’s home when he was not permitted to be there. Thus, it is unsurprising that, in order to challenge the complainant’s credibility, the applicant relied heavily on inconsistencies, of which there were many, between his evidence at the trial and his earlier out-of-court statements relating to his relationship with the applicant as well as on the conflict between the evidence of the complainant and that of his mother. It is necessary to make a brief mention of these inconsistencies. In the case of the complainant, he was interviewed by police in respect of the applicant’s treatment of him on two occasions, namely, on 18 June and 21 August 2002. Each time he effectively said that the applicant had “never done anything bad to [him]” and that he felt safe with him. The complainant made statements to like effect to DHS officers on 16 April 2002 (to Monica Bozinovska) and on 18 August 2002 (to Joseph Molly, known as “Jock”). In his evidence, however, he said that what he told the authorities in that regard was a lie. There was also a conflict between the mother’s evidence and that of the complainant as to when she was first told of the applicant’s sexual offending. The complainant’s mother claimed that she was not aware until 23 August 2002, of her son’s allegations against the applicant, whereas the complainant said that he told his mother of these matters a day or so before 18 August 2002. Moreover, the mother’s evidence on this issue was inconsistent with the notes of Jock to the effect that, on 18 August 2002, she said to the boy, in Jock’s presence, “Tell them everything, you know, about your bottom. I won’t get upset.”
Ms Dixon submitted that, given the importance of these inconsistencies to the defence case, his Honour did not highlight them sufficiently in his charge and pointed to the following alleged defects in the directions. First, it was said, his Honour did not tell the jury with sufficient clarity that the complainant’s prior inconsistent statements could be regarded by them as weakening the reliability of his evidence. Secondly, it was claimed that his Honour failed to relate the directions as to prior inconsistent statements to the relevant evidence. Next, counsel contended that his Honour did not tell the jury, as he should have, that a prior inconsistent statement might be regarded as incorporated into the evidence of the witness if it was adopted by that witness as being true. It was further claimed that his Honour undermined the importance of the complainant’s prior inconsistent statements made to Monica Bozinovska by characterizing them as her statements rather than those of the complainant. Ms Dixon further contended that his Honour also diminished the effect of the complainant’s prior inconsistent statements by characterizing him as a “self-confessed liar” and as being “protective” of the applicant. Finally, it was asserted that the judge failed to identify sufficiently the conflict between the complainant’s evidence and that of his mother.
In my view, however, there is no substance in these complaints. It is apparent from the totality of what his Honour said to the jury about these aspects of the evidence that he sufficiently explained how they could use the prior inconsistent statements in their deliberations without undermining their importance to the defence case. Furthermore, he also drew the jury’s attention to the relevant conflict between the evidence of the complainant and his mother. The first occasion on which his Honour directed the jury in relation to prior inconsistent statements was before the Crown closed its case, more particularly, immediately after the conclusion of the complainant’s evidence when the inconsistencies were fresh in their minds. His Honour explained what constitutes a prior inconsistent statement and said that, if the jury accepted the complainant’s rejection of what he had earlier said to the authorities about his relationship with the applicant, they could not use such earlier statements as evidence of the truth of the contents. His Honour went on to say: “You can only use that prior statement for your assistance in determining whether or not the evidence that [the complainant has] given before you as to what happened is credible evidence”. This direction, I think, met the requirements for a proper charge as to inconsistent statements.[14]
[14]See, generally, Driscoll v. The Queen (1977) 137 C.L.R. 517 at 522 per Barwick, C.J., and at 535-7 per Gibbs, J.; and R. v. Cahill (No. 2) [1999] 2 V.R. 387 at 394 per Buchanan, J.A. (with whom Winneke, P. and Charles, J.A. agreed).
The next time his Honour dealt with prior inconsistent statements was in his charge to the jury. As Ms Quin, for the respondent, pointed out, this matter was introduced in the context of his Honour’s dealing with the complaint’s delay in making the allegations about the applicant’s conduct towards him. His Honour told the jury that there was no evidence of any recent complaint having been made by BS about this matter. Indeed, said his Honour, the boy gave evidence that he first complained about it only shortly before 18 August 2002, when he told his mother of the offending conduct. Not only did the complainant fail to make any allegation of sexual abuse before that time, said his Honour, but he positively claimed to the authorities that the applicant had not maltreated him. His Honour told the jury that he would draw their attention to the evidence of this when he summarised it later in his charge (and he did so). The learned trial judge then went on to explain to the jury the relevance of the absence of any recent complaint by BS and said that they could take this failure into account in assessing the boy’s credibility. His Honour then highlighted the inconsistencies between the complainant’s evidence and his earlier out-of-court statements concerning his relationship with the applicant. After telling the jury again that they could only convict the applicant if the complainant’s evidence satisfied them beyond reasonable doubt that the offences in question had been committed by him, his Honour proceeded to list, as I have noted, matters that they might consider bore adversely on BS’s credibility. These matters included BS’s “massive behavioural problems”, that he was a “self-confessed liar” and that he had failed to make a timely complaint. His Honour also told the jury that, in the circumstances, it was dangerous to convict the applicant given the absence of independent evidence supporting the complainant’s allegations.
It is plain, therefore, that his Honour made it clear to the jury that they could regard the boy’s prior inconsistent statements as weakening the reliability of his evidence in court and that his Honour sufficiently identified the relevant out of court statements. Moreover, the conflict between the evidence of BS and his mother, to which I have referred, was also sufficiently identified.
I note for completeness that, in the circumstances, there was no point in his Honour telling the jury, as Ms Dixon claimed his Honour should have done, that, if adopted, the earlier statements formed part of the complainant’s evidence because, as I have noted, the complainant had repudiated in court his earlier statements to DHS and the police.
I also do not accept counsel’s claim that the importance of the complainant’s prior inconsistent statements was undermined by his Honour’s characterization of the complainant as a “self-confessed liar” and as having been “protective of the applicant”. I consider that it would have been plain to the jury that these descriptions amounted to matters going against the complainant’s credit, rather than being supportive of it. Given the context in which his Honour made these observations, there is no reasonable likelihood that the jury would have regarded them as amounting to an implied suggestion by the judge that, although the complainant had lied out of court, he was being truthful in his evidence.
I now turn to the complaint that his Honour wrongly characterized the complainant’s statement to Ms Bozinovska as being her statement and, thereby, undermined the significance of that prior inconsistent statement. The circumstances in which his Honour came to deal with this matter were these. After the conclusion of his charge, and at the request of the applicant’s trial counsel, his Honour re-directed the jury so as to highlight the complainant’s prior inconsistent statements to the two DHS officers, who were not called to give evidence at the trial, but whose notes of their respective interviews with the complainant and his mother were made available to the applicant’s counsel. We are only concerned with what the complainant said to Ms Bozinovska. When his Honour came to deal with the boy’s statement to Ms Bozinovska, he reminded the jury that, according to the notes made by her of her meeting with the complainant and his mother on 16 April 2002, the complainant “spoke positively” of the applicant. His Honour also reminded the jury that in his evidence BS had accepted this characterization of what he had said at the meeting, albeit stating that he had no recollection of what he said to Ms Bozinovska. His Honour also explained that Ms Bozinovska’s notes, which had been read into the transcript by the applicant’s counsel as “a prior statement made by a person who was not a witness in the case”, should “receive [their] attention”. Then followed the impugned passage in the redirection: “That is the statement that is attributed to Bozinovska in which she spoke of what the boy’s reaction was on 16 April”. It was said for the applicant, as I have noted, that his Honour wrongly characterized the complainant’s statement as being Ms Bozinovska’s statement rather than that of the complainant. In my view, however, this complaint is wholly without merit. It is plain from what has been said by me earlier that his Honour drew the jury’s attention to the fact that the complainant’s statements to the DHS officers were wholly inconsistent, in relevant respects, with his evidence at the trial. In the circumstances, I think that it would have been perfectly clear to the jury that in the impugned passage his Honour meant to say that the complainant’s prior inconsistent statement was recorded in Ms Bozinovska’s notes and that they should consider this inconsistency in assessing the veracity and reliability of the complainant’s evidence. I note that no exception was taken by the applicant’s trial counsel, who was astute enough to have asked for redirection in the first place, about what his Honour said in this regard, so that it can be fairly assumed that no miscarriage of justice occurred by reason of the impugned redirection.
Thus, for the reasons I have given, I consider that a fair reading of his Honour’s charge does not disclose the errors contended for under proposed ground 4.
Ground 1 – verdicts unsafe and unsatisfactory
It was next argued for the applicant under cover of ground 1, that a properly directed jury should have entertained a reasonable doubt about the guilt of the applicant, given the complainant’s continuing, voluntary visits to the applicant’s home and his more general association with him, particularly when this conduct is taken together with his prior inconsistent statements and the relevant conflict in the mother’s evidence. Counsel claimed that there was evidence from the complainant and his mother that should have led the jury to conclude that there was a material degree of acquiescence and willing participation by the complainant in the continuation of his relationship with the applicant (notwithstanding the issue of the intervention order). Ms Dixon also argued that the jury should, in the circumstances, have rejected, as being implausible and incapable of being accepted beyond reasonable doubt, the claims that the applicant engaged in sexual activity with the complainant that involved violence. As such, it was said, the verdicts are unsafe and unsatisfactory.
I consider, however, that, on the whole of the evidence, it was well open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty as charged.[15] True it is that there were significant inconsistencies between the complainant’s evidence and his earlier out-of-court statements and behaviour and that there was uncertainty regarding when his mother first learned of the applicant’s offending conduct. But these matters were before the jury and would have been considered by them. Importantly, if the jury accepted the complainant’s evidence, it was well open to them to convict the applicant. In the circumstances, it cannot be said, I think, that the verdict was so unreasonable that no reasonable jury, properly directed, would have reached such a conclusion.[16]
[15]MFA v. The Queen (2002) 213 C.L.R. 606 at 614-615 per Gleeson, C.J., Hayne and Callinan, JJ. and at 623-624 per McHugh, Gummow and Kirby, JJ. and M v. The Queen (1994) 181 C.L.R. 487 at 493-494 per Mason, C.J., Deane, Dawson and Toohey, JJ.
[16]MFA v. The Queen (2002) 213 C.L.R. 606 at 614-615 per Gleeson, C.J., Hayne and Callinan, JJ. and at 623-624 per McHugh, Gummow and Kirby, JJ.; R. v. Nikolaidis [2003] VSCA 191 at [32] per Eames, J.A. with whom Winneke, P. and Charles, J.A. agreed.
Proposed ground 5 - Applicant’s lies as evidence of consciousness of guilt
Under cover of proposed ground 5 it was contended for the applicant that the lie that he told the police in his home on 20 August 2002, namely, that the complainant was not there, gave rise to the risk that the jury would consider that it was a material lie which amounted to evidence of the applicant’s consciousness of guilt of all, or at least some, of the offences charged. It was submitted that the mere fact that the Crown did not rely on the lie as an implied admission of guilt did not remove the risk that the jury might have viewed it as such. Consequently, counsel argued, his Honour should have given the jury an Edwards-type direction and his failure to do so resulted in a miscarriage of justice.
It is plain enough that, where the Crown relies on a lie as evidence of the offender’s consciousness of guilt, ordinarily, the judge should give an Edwards-type direction.[17] But even if the Crown does not rely on a material lie in this manner, there may nevertheless be a need for the judge to give such a direction in order to avoid a miscarriage of justice. Whether such a direction is required depends on the circumstances of the case, as was recognised by the majority in Zoneff v. The Queen[18]. In that case, their Honours adopted the statement of Hayne, J.A. in R. v. Morgan[19] that “rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated”.
[17]Edwards v. The Queen (1993) 178 C.L.R. 193 at 210-211 per Deane, Dawson and Gaudron, JJ.
[18](2000) 200 C.L.R. 234 at 244 per Gleeson, C.J., Gaudron, Gummow and Callinan, JJ.
[19]Unreported, Court of Appeal, 13 August 1996 at 4.
Here, as I have said, the Crown did not rely on the lie in question as evidence of guilt in respect of count 16 or any other count, mentioning it only very briefly in its opening and closing addresses. The majority in Zoneff said[20] that, as a general rule, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt or there is risk of misunderstanding on the part of the jury as to the use to which they may put the lie, notwithstanding that the prosecutor has not claimed it had been told out of consciousness of guilt. In that case, the Crown did not rely on the lie in question as having been told out of consciousness of guilt. Nevertheless, the trial judge told the jury in his charge that, although people lie out of consciousness of guilt, there are other reasons, of which he gave examples, why lies are told that are not consistent with guilt. The High Court held that, having introduced the possibility of the lie constituting evidence of consciousness of guilt, his Honour should have given the jury an Edwards-type direction and his failure to do this amounted to a miscarriage of justice.
[20]At 244[16].
In this case, not only did the Crown not rely on the applicant’s lie as being evidence of his consciousness of guilt, but there was nothing in its conduct of the case that would have caused the jury to think that the applicant’s lie amounted to an implied admission of his guilt.[21] Ordinarily, whether such a risk exists can be best determined by those familiar with the atmosphere of the trial. Here, the applicant’s experienced trial counsel did not seek an Edwards-type direction. It can be fairly assumed that he would have been in a sound position to assess whether such a direction was called for in order to avoid a perceptible risk of a miscarriage of justice, particularly since he addressed the jury after the prosecutor. That counsel did not raise the matter with his Honour or seek a direction for which the applicant now contends indicates that he did not consider that any such risk was present. Put another way, “it is difficult to resist the inference that [he] took the view that there was nothing to be gained by raising the matter.”[22]
[21]cf. R. v. Nguyen (2001) 118 A.Crim.R. 479. and R. v. Chang (2003) 7 V.R. 236.
[22]Osland v. The Queen (1998) 197 C.L.R. 316 at 334 per Gaudron and Gummow, JJ.
It seems to me that it is unsurprising that the applicant’s trial counsel did not think that there was a real risk of the jury treating the lie as amounting to evidence of the applicant’s consciousness of guilt as to any of the offences charged given that, as I have noted, the focus of the trial was on the complainant’s, and not the applicant’s, truthfulness. In any event, I consider that an Edwards-type direction would have been disadvantageous to the applicant given that it would have alerted the jury to an issue upon which the parties had not joined, thereby giving an undue prominence to the lie. As Ormiston J.A. said in R. v. Chang[23], an Edwards-type direction, which necessitates the examination and repetition of often damning evidence, “has … frequently been seen [by trial judges and lawyers appearing for the accused] as likely to cause unfairness or prejudice to the accused.”
[23]At 238.
For these reasons, I consider that this proposed ground should also fail.
Proposed ground 6
Under cover of proposed ground 6 the applicant’s case was that, in his charge, his Honour failed –
(a)To state sufficiently the law applicable to the offence of stalking and relate it to the evidence.
(b)To direct the jury sufficiently about the evidence of the complainant having consented to the applicant’s continuing contact with him.
(c)To direct the jury about the limited use that could be made of the intervention order that was tendered in evidence.
In support of the first complaint it was said that his Honour’s directions as to stalking were inadequate because they were limited to reading the legislative provision, reiterating the evidence in relation to it and “adding some explanation about a course of conduct”. In my view, there is no merit in this criticism. It is true that, in describing the of elements of the offence, his Honour read the relevant legislative provision to the jury. But he did so in a meaningful and expanded way, telling them, amongst other matters, that the offence required proof that the course of conduct actually caused fear and apprehension of the part of the victim. His Honour then explained to the jury the evidence on which the Crown relied to establish the relevant intent on the part of the applicant and the other elements of the offence. In particular, his Honour emphasised the evidence that related to the circumstances in which the complainant came to be driven to the applicant’s home, that is, that he went voluntarily with the applicant to his house.
As to the second complaint, it was put by Ms Dixon that the evidence presented a “conundrum” for the jury, in as much as it showed that the complainant appears to have willingly maintained a relationship with the applicant against his mother’s wishes. By way of example, Ms Dixon highlighted that the boy continued to collect items left in a tree for him by the applicant as well as speaking to him on several occasions and accepting rides in his car. Thus, it was said, it was open to the jury to conclude that, on 20 August, he made his way willingly to a place in Ascot Vale to meet the applicant and was happily playing video games at his home when the police arrived. Counsel argued that this “conundrum” was not referred to “in detail” by his Honour and that the jury were not instructed clearly as to how to decide whether to convict the applicant on the charge of stalking if they accepted that the complainant was acquiescing in the relationship with the applicant. I consider, however, that his Honour made it plain in his charge, amongst other matters, that an element of stalking involved a course of conduct “with the intention of causing physical or mental harm … to the victim or to [give rise to an] apprehension of fear … in the victim for his or her own safety” and that the Crown was required to prove that “the course of conduct actually did have that result …”. And, as I have said, his Honour directed the jury to the cross-examination of the complainant, throughout which counsel had sought to establish that the complainant got into the applicant’s vehicle voluntarily and to demonstrate thereby that the required element of fear or apprehension was missing. It is apparent, therefore, that the jury had the issue of the complainant’s consent brought to their minds, as well as the elements of the offence and the relevant evidence. Accordingly, I think the second complaint is unfounded.
I also consider that the third complaint must be rejected. Ms Dixon argued that his Honour erred by failing to warn the jury that they must not reason that, merely because the complainant was described in the intervention order as the “victim of stalking”, the applicant was guilty of count 15. Counsel claimed that this description of the complainant was “unduly prejudicial” to the applicant and thus, necessitated a direction by his Honour as to the limited use that could properly be made of the order. It seems clear enough, however, that the order was tendered only for the purpose of establishing formally that it had been obtained, as well as its date and terms. Relevantly, his Honour informed the jury that the intervention order was tendered by consent. No particular direction in respect of it was sought by the applicant’s counsel, so that it may be fairly assumed that he did not regard the tender as unduly prejudicial. Furthermore, the admission of the intervention order did not detract from his Honour’s directions to the jury that were given in relation to the stalking count. It follows, I think, that this proposed ground should also fail.
Proposed ground 7 – denial of fair trial due to combination of complaints in ground 1 and proposed grounds 2 – 6
Given my conclusions in respect of the earlier grounds, this ground cannot succeed.
Conclusion
Since I consider that proposed grounds 2 to 7 are without merit, I would not give leave to the applicant to amend his relevant notice so as to include them. I also consider that, for the reasons I have given, ground 1 is without merit. Accordingly, I think that the application for leave to appeal against conviction should be dismissed.
NETTLE, J.A.:
I have had the advantage of reading in draft the reasons for judgment of Chernov, J.A. and I agree with his Honour that the application for leave to add the proposed grounds 2 and 7 of appeal should be refused and that the application for leave to appeal against conviction should be dismissed.
The High Court’s decision in KRM[24] confirms that the mere fact that an accused is charged on presentment with a number of counts containing the same or similar offences against the same victim is ordinarily not enough to require that a propensity direction be given. I agree with Chernov, J.A. that there is nothing in this case which warrants that it be treated as an exception.
[24]KRM v The Queen (2001) 206 C.L.R. 221 at 234 [35]-[37], per McHugh, J., at 246 [72], per Gummow and Callinan, JJ., at 259 [114] per Kirby, J. and at 264 [134], per Hayne, J.
I also agree with Chernov, J.A., for the reasons which his Honour gives at paragraphs [26] to [31] of his judgment, that there is little substance in the applicant’s complaints about the directions which the judge gave to the jury concerning prior inconsistent statements.
Further, in my view it has not been shown that the verdict was against the evidence or the weight of the evidence. Whatever might be said about some of the more questionable aspects of the complainant’s evidence, it must be remembered that the Crown also presented a powerful circumstantial case. If the complainant’s evidence had stood alone, the position may well have been different. But in view of
the totality of the evidence, it is just not possible properly to say that the jury were bound to have a reasonable doubt as to the applicant’s guilt of the offences with which he was charged.[25]
[25]Jones v The Queen (1997) 191 C.L.R. 439 at 468.
I agree with what Chernov, J.A. has written as to whether there was a need for the judge to give an Edwards direction. I share his Honour’s conclusion that it was neither necessary nor in the interests of the applicant that such a warning be given in this case.[26]
[26]See and comparer R v Stylianou [2005] VSCA 123 at [44], per Warren, C.J. and at [65]-[66], per Winneke, P.
Finally, I see nothing in the complaint which is made about the judge’s directions to the jury on the elements of the offence of stalking. That does not mean that the judge’s charge should on this point be regarded as a precedent. I am inclined to think that the judge could have said more on the subject and that it may have been helpful to do so. But like Chernov, J.A., I am of the view that the judge sufficiently outlined the elements and so related them to the evidence to enable the jury to make an informed decision as to whether the offence had been proved. In the end, that is all that was required.
HARPER, A.J.A.
I have had the advantage of reading in draft the reasons for judgment of Chernov, J.A. and of Nettle, J.A. I agree with their Honours, for the reasons that they have expressed, that the application for leave to add the proposed grounds 2 and 7 of appeal should be refused and that the application for leave to appeal against conviction should be dismissed.
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