R v D W B
[2006] VSCA 137
•21 June 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 159 of 2005
| THE QUEEN |
| v. |
| DWB |
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JUDGES: | BUCHANAN, NEAVE and REDLICH, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 June 2006 | |
DATE OF JUDGMENT: | 21 June 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 137 | |
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Criminal Law – Application for leave to appeal against conviction on one count of attempted indecent act with a child under 16 – Complainant commonly slept in bed with applicant but sexual acts occurred only on a single occasion – Evidence of uncharged acts on the same occasion – relationship evidence – Whether evidence of relationship and uncharged acts required a propensity direction – Whether summary of evidence adequate to the facts of the case – Whether jury verdicts inconsistent or unable to be supported – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M.A. Gamble | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr L.C. Carter | Victoria Legal Aid |
BUCHANAN, J.A.:
I will ask Neave, J.A. to deliver the first judgment.
NEAVE, J.A.:
Background
The applicant seeks leave to appeal against his conviction for attempting to commit an indecent act with a child under the age of 16, to whom he was not married. The complainant, who was born on 23 August 1988, was the applicant's stepdaughter. She was 14 at the time of the alleged offences.
The complainant lived with her mother and the applicant for about two years. The couple separated when the complainant was about 13, but the complainant saw the applicant regularly after the separation. The applicant moved into a house with three other people and the complainant frequently stayed with him on Friday and Saturday nights. Because there were only four bedrooms in the house, the complainant stayed in the applicant's room. The complainant's evidence at trial was that her stepfather made her sleep in his bed with him. The applicant's son slept on the floor of the applicant’s room when he stayed at the house. Although the complainant had slept in the applicant's bed on a number of occasions, there was no suggestion that the applicant had sexually assaulted the complainant, or attempted to do so, before the incident described below.
The complainant alleged that on the evening in question, she got into the applicant's bed wearing knickers with boxer shorts over them and a pink top. While she was sleeping in his bed, she woke up because the applicant had lifted up her top. His open mouth was near her right breast and she pushed it away. He then went to lick her right breast and she pushed his head away again. After that he went to put his mouth on her left breast and she pushed him away again.
The complainant said that shortly after he attempted to lick or kiss her breasts the applicant slid down under the doona, pulled her knickers and shorts down and put her knees together and she could feel his breath on her vagina. He then put his hand down under the doona and tried to touch her. She pushed his hand away and he repeated the action twice. She pulled down her top and pulled up her pants and went back to sleep. Later during the night she woke up and felt the applicant's two fingers inside her. She pulled out his fingers, re-arranged her clothing and eventually went back to sleep.
In his police interview, the applicant said he had "confusing feelings and reactions" to the complainant, and that "it was good having someone close to me". He admitted that an incident had occurred when he and the complainant were sharing a bed. His version of events was that the complainant was snuggled into him, that he had turned around and that she had pulled him closer, held him tight, and that he had cuddled her back. The applicant said he thought that the complainant might have kissed him, but that he hadn't kissed her back. He stated further that:
"... then we just got close and then I just thought - all I can remember is I probably touched her breasts. I think I touched her breasts and that was about it."
The applicant said he was "really, really, really sorry it happened" but that "he shouldn't have been in that position in the first place". He denied that he had digitally penetrated the complainant.
The applicant was charged with one count of committing an indecent act with a child under the age of 16, to whom he was not married. The basis for count 1 was that the accused had sucked the complainant's breast. (In other words, the prosecution did not rely on the applicant's admission in the police interview that the applicant had "probably touched her breasts".) He was also charged with one count of taking part in an act of sexual penetration with a person whom he knew to be his stepchild.
In his jury charge the trial judge directed the jury that they must, as a matter of law, acquit the accused of the first count as the complainant had not testified that the accused had actually touched her. His Honour said that it was open to the jury to convict the accused of the offence of attempting to commit an indecent act with a child, if they were satisfied that what he had done amounted to an attempt.
The applicant was convicted of attempting to commit an indecent act with a child under the age of 16. He was acquitted on the count of digital penetration.
Grounds of Appeal
The applicant argued four grounds of appeal.
Ground 1
The first ground of appeal was that the trial had miscarried "as a consequence of the jury's not being directed adequately or at all on their use of relationship evidence." In particular it was asserted that the judge had erred by not directing the jury -
"on the sole and limited purpose for which that evidence was admitted and that they could not reason that, because the applicant might have done something wrong on another occasion or other occasions, he was the kind of person likely to have committed the offences charged."
There are restrictions on the admission of evidence that an accused person has committed criminal offences, or other acts of an immoral or discreditable character,[1] which show a propensity to commit offences similar to
those with which he or she has been charged.[2] Such restrictions apply because evidence of propensity is likely to be unfairly prejudicial to the accused. Restrictions on admission of propensity evidence do not normally prevent admission of evidence of uncharged acts which are relevant to the nature of the relationship between the accused and the complainant and which put in context the evidence relating to the offences with which the accused has been charged.[3] In R. v. GAE, Callaway, J.A. explained that the basis for admitting evidence that the accused had committed prior sexual offences against the complainant was that -
"a truthful complainant is likely to be disbelieved if relationship evidence is excluded and in consequence the jury derive the impression that the complainant is saying that the accused molested him or her out of the blue."[4]
[1]Propensity evidence is not limited to evidence of other crimes; see R. v VN [2006] VSCA 111 at [26] per Redlich, J.A; R v Best [1998] 4 V.R. 603 at 608 per Callaway, J.A.
[2]Perry v R (1982) 150 C.L.R. 580 at 585; Sutton v R (1984) 152 C.L.R. 528 at 533. Crimes Act 1958 s 398A permits the admission of evidence of propensity when it is just to do so, despite its prejudicial effect. The section does not remove the common law requirement that the evidence is inadmissible unless its probative value exceeds its prejudicial nature; R v Tektonopoulos [1999] 2 V.R. 412 at 417 per Winneke, P.
[3]Where relationship evidence shows a propensity to commit a particular type of offence its probative value will usually exceed its prejudicial effect; R v Hopper [2005] VSCA 214 at [78] per Vincent, Nettle JJ. A and Osborn AJA. And see, for example, R v Anderson (2000) 1 V.R. 1.
[4][2000] 1 V.R. 198.
Where evidence of this kind is admitted the jury must be given a propensity warning, in terms similar to those set out in R. v. Grech.[5] In that case Callaway, J.A. said that where an accused is charged with sexual offences and evidence is admitted of uncharged sexual acts, the jury should be warned both that the commission of the offences charged can only be proved by evidence relating to them and not by evidence of other conduct and that they should not reason that because the accused may have committed similar offences on other occasions he was the kind of person who was likely to have committed the offence with which he was charged.
[5][1997] 2 V.R. 609 at 614; see also R v Vonarx [1999] 3 V.R. 618.
In essence, the first ground of appeal asserts that the trial judge should have given a propensity warning of this kind. The question for decision is whether admission of evidence of the relationship between the applicant and the complainant, or of other sexual acts which allegedly occurred on the same occasion as the offences with which the applicant was charged, required the trial judge to give a warning of the kind set out in Grech.
Counsel for the applicant, Mr Carter, submitted that a warning of this kind was required, because the applicant admitted in his police interview that the complainant had slept in his bed on prior occasions, that he had "confusing feelings and reactions" to the complainant and that it was good to have affection from her; and that he had cuddled her and probably touched her breast on the night in question. Mr Carter also asserted that the complainant's evidence about the events which occurred on that occasion was evidence of uncharged acts indicating a propensity to commit sexual offences, which required the trial judge to give such a warning.[6] Mr Carter submitted that counsel for the prosecution’s closing address had relied on these facts, as evidence of the applicant’s propensity to commit sexual offences against the complainant.
[6]Mr Carter referred to R v BAH (No 2) [2005] VSCA 197, a case in which this court held that the jury should have been directed in terms similar to those in R v Grech, [1997] 2 VR 609 in relation to uncharged sexual acts which the accused was alleged to have committed against his 11 year old daughter.
Counsel for the prosecution, Mr Gamble, submitted that the evidence that the complainant shared the applicant’s bed and that he had confused feelings towards her was not evidence of a propensity to commit sexual offences against the complainant. The fact that the complainant had slept in the applicant’s bed on many occasions prior to the night on which the alleged offences occurred, did not show a propensity to engage in sexual acts with her. Indeed, the complainant had testified that the only sexual incident between herself and the applicant was the one which occurred on the night in question. Because the only evidence of uncharged acts related to acts occurring immediately before the acts which were the subject matter of the count, it was not necessary for his Honour to warn the jury in the manner asserted by the defence.
His Honour warned the jury as follows:
"... you have to decide this case upon the evidence, and what you cannot do is say, 'look, this evidence isn't all that hot really, but something was going on, he's been doing something to this girl. I don't know exactly what, but he's not going to get - I'm going to nail him for something'. You cannot do that. That is unjust. You cannot say, 'I can feel it in my bones. There's something been going on here, and what do they want me to do, just let him walk away? No, no, no, I'm going to nail him for something. I don't care which one, but I'm going to convict him of something.' You just cannot act like that. I know you will not. It just does not make sense to do that…”
You have got to be satisfied that the very act alleged, whichever count you are considering, has been proved to your satisfaction beyond reasonable doubt by the evidence that has been presented to you."
In my view evidence that the complainant and the applicant had shared a bed on previous occasions and that the applicant was confused about his feelings towards the complainant, was merely evidence about the circumstances in which the alleged offences occurred.[7] It was not evidence of a propensity to commit sexual offences against the complainant.
[7]Compare the facts in R. v. VN, [2006] VSCA 111, where the father slept in his daughter's bed regularly and sexually assaulted her on those occasions.
In R. v VN[8] Redlich, J.A, said that
“Where the evidence of relationship is capable of supporting an inference of impropriety or the commission of a crime on occasions which are not the subject of the particular charges, a propensity warning will be required. Where the relationship evidence is not of this character but is merely evidence supportive of the complainant’s testimony, no such warning is called for.”
[8][2006] VSCA 111 at [25]. Maxwell P and Buchanan J.A. agreed with Redlich J.A.
The complainant testified that there was only one episode of sexual behaviour between herself and the applicant. Her evidence about other sexual acts occurring on the same occasion and the applicant's admission that he had probably touched her breast on that occasion is not propensity evidence.
In R v Grech the accused had been convicted of incest. The conviction was set aside because it was held that the jury should have been warned not to reason that, because the accused was alleged to have committed uncharged sexual offences against the complainant on other occasions, he was the kind of person who would have committed the offences with which he was charged. In Grech, the relevant acts occurred on other occasions and did not involve uncharged acts which preceded the alleged act and were part of the same transaction. [9]
[9]In R v Grech [1997] 2 V.R. 600 the evidence which was admitted was of other sexual incidents, including an uncharged act of sexual penetration by the father of his daughter. See also R v. VN, [2006] VSCA 111, where the evidence was that the father slept in his daughter's bed regularly and sexually assaulted her on those occasions. The conviction in R v. VN was upheld.
When uncharged acts have occurred on previous occasions, there is a clear rationale for requiring the jury to be directed that they should not reason that the accused is the kind of person who was likely to have committed the offence with which he has been charged.[10] In a case where the so-called uncharged acts are part of a single incident involving a single complainant, the danger that the jury will use impermissible reasoning is met by a direction in the terms given by his Honour.
[10]R v. J (No 2) [1998] 3 V.R. 602 at 642 per Callaway, J.A. In that case, Callaway, J.A said that the two part warning required in Grech, may not be required in the “unexceptional case of several counts involving one victim being tried at the same time”. The same principle must apply a fortiori where the uncharged acts relate to the same victim and occur during the same incident as the charged offences.
The jury was clearly warned that they should not assume that the applicant was guilty of an attempted indecent assault because they thought that "something was going on". They were told that it was necessary to decide whether the particular acts amounted to an attempt to indecently assault the complainant.
His Honour did not warn the jury that they could not reason that because the accused may have committed similar offences on other occasions he was the kind of person who was likely to have committed the offence with which he was charged. In my view, however, a warning in these terms was entirely unnecessary.
The jury direction set out above was sufficient to warn the jury of the need to find that the elements of the particular count were proven beyond reasonable doubt. For that reason, the first ground of appeal is not made out.
Ground 2
The second ground of appeal was that his Honour did not adequately summarise the evidence for consideration by the jury.
In his jury charge his Honour referred to the surrounding circumstances of the case, including the fact that the applicant and complainant had slept in the same bed over a period of months, but that the complainant did not allege that any sexual acts had occurred previously. He referred to the fact that the complainant had said in her police statement that the applicant had sucked her breast, but in her evidence at trial said that he had not done so. He referred to the failure of the complainant to tell anyone about the offence immediately after it had occurred. He said that her evidence relevant to an attempt "is contained in virtually one sentence" and then referred verbatim to that evidence and told the jury "this is the act as to which you must ask yourselves whether it constitutes an attempt to suck her left breast".
His Honour also referred to the suggestion made by defence counsel that "there is some transposition of dreams and nightmares" that may have led her to confuse a dream with reality and referred to the possibility that the complainant may have, over time, convinced herself that these events had occurred. The jury later asked for access to the transcript of the complainant's evidence and his Honour read the transcript of her evidence-in-chief to the jury.
In his charge his Honour did not draw the jury's attention to the accused's admission that he had confusing feelings about the complainant, or that he had probably touched her breast. In this respect the relative brevity of the charge was actually favourable to the applicant.
Apart from the fact that the complainant's evidence at trial was that the applicant had attempted to touch her breast, when she had previously said that he had done so, the factual issues in this case were not complex. The jury was directed that they could not find the applicant guilty of indecent assault, but could find him guilty of an attempted indecent assault only if they were satisfied beyond reasonable doubt of the elements of that count. In relation to the attempt count the issue to be considered by the jury was whether they should accept the complainant's evidence or whether her account of what had happened was attributable to a dream or to an inaccurate memory. His Honour's summary of the facts was relatively brief, but it referred to the critical factual issues. In my view it was sufficient in the circumstances of this particular case.
Although there was discussion between the applicant's counsel and the trial judge about the jury direction in relation to the charge of attempted indecent assault as an alternative to count 1, counsel did not take exception to any other elements of the charge. Although this does not preclude the Court from finding that a miscarriage of justice has occurred, it can be regarded as an important indicator that "counsel present saw no injustice or error in what was done".[11]
[11]R. v. Wright [1993] V.R. 355 at 356 per Phillips, C.J. and Charles, J.A. See also Callaway, J.A. at 360 [16]-[20]; R v Kotzmann [1999] VSCA 27 at [99] per Batt J.A.
For these reasons ground 2 is not made out.
Ground 3
The third ground of appeal was that the verdict of the jury on the alternative to count 1 was inconsistent with the verdict on count 2. It was asserted that the jury verdict was unsafe and unsatisfactory, since a properly instructed and reasonable jury ought to have had a reasonable doubt about the guilt of the applicant.
In relation to the inconsistency of verdict element of ground 3, the applicant asserted that no reasonable jury could have acquitted the applicant on count 2 but convicted him on the attempt count, because "a reasonable doubt as to count 2 should logically, in the circumstances, have extended to the attempt count".
In R. v. Ware[12] this Court held that a factual inconsistency between verdicts arises only when "no reasonable jury, which had applied its mind properly to the facts of the case, could have arrived at the two different conclusions which it did.[13]"
[12][1997] 1 V.R. 647.
[13][1997] 1 V.R. 647 at 647 per Hedigan, A.J.A.
Courts are generally reluctant to find that jury verdicts on different counts are factually inconsistent, because it is the role of the jury to make factual findings. The Court will only do so if the factual inconsistency between verdicts of conviction and acquittal is such "an affront to logic and common sense "that the verdicts cannot stand together.[14]
[14]MacKenzie v. R. (1996) 190 C.L.R. 348 at 368.
The trial judge directed the jury that -
"each of these charges must be considered separately and independently of the other. It may be that the same logic applies to both of them. That is as it may be. It may be that as a matter of reason logic will dictate the verdict in each case, but it would be quite wrong to say that simply because you find Mr DWB guilty or not guilty of one, then for that reason he must be guilty or not guilty of the other. ... Each charge has to be considered separately in the light of the evidence that applies to it, and you must ask yourselves separately as to each count 'Am I satisfied beyond reasonable doubt by the evidence that he is guilty of this charge'."
His Honour pointed out that the jury could not convict the applicant on the second count unless they were satisfied that "there was penetration beyond the outer lips of the complainant's vagina". He also said that at the time of the alleged events the complainant was only 14 and that her age might be "productive of some misunderstanding of events".
The complainant's evidence was that she had been asleep and woken to find the applicant digitally penetrating her. By contrast, as Mr Gamble pointed out, the attempted indecent touching occurred in a context where there were several acts, which took place over a period of time and were alleged to have occurred while the complainant was pushing away the applicant. The jury may well have taken the view that they could not be satisfied beyond reasonable doubt that penetration had occurred, but have been satisfied as to the occurrence of the acts on which the attempted indecent act was based. Thus there is no factual inconsistency between a finding that the applicant was guilty on the count of attempting to indecently assault the complainant, but not guilty on the count of digital penetration.
The third ground of appeal also asserted that the verdict was unsafe and unsatisfactory, because no reasonable jury could have convicted the applicant of an attempted indecent assault on the basis of the "uncorroborated and inconsistent" evidence of the complainant. Mr Carter submitted that both the inconsistency between the previous statements of the complainant and her evidence at trial and the discrepancies within her evidence at trial made the conviction unsafe and unsatisfactory.
In effect, the submission was that if the complainant's evidence on count 2 was rejected it must also have been rejected on count 1. A similar argument was rejected by the High Court in MFA v. R.[15], which also concerned alleged sexual offences. The Court in that case rejected the proposition that -
"[v]erdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility."
[15](2002) 213 C.L.R. 606 at 618.
The jury were clearly directed about the prior inconsistent statement by the complainant. His Honour said that the fact that the complainant had said on an earlier occasion that the applicant had sucked her breast, while at trial she had testified that he had attempted to do so, could be used by the jury "as a reason for not believing her, or not relying upon her evidence, or at least as casting doubt upon her reliability as a witness".
There were a number of other factors which the jury was entitled to take into account in assessing whether the alleged acts occurred, including the circumstantial evidence to which I have already referred, and the fact that the complainant was sleeping in the applicant's bed at his insistence.
In my view it was open to a jury to be satisfied beyond reasonable doubt that the accused was guilty, on the whole of the evidence. For these reasons, ground 3 is not made out.
Ground 4
Ground 4 was that the trial miscarried as a result of the cumulation of some or all of the errors discussed above. As grounds 1, 2 and 3 have not been made out, ground 4 must also necessarily fail.
The application for leave to appeal should therefore be refused.
BUCHANAN, J.A.:
I agree.
REDLICH, J.A.:
I also agree.
In relation to ground 1, I would add that none of the circumstances discussed in R. v. DCC[16], which call for a direction in relation to propensity evidence, arise in the present case. There was no evidence of charged or uncharged acts which were not related in time to the acts alleged and which called for a propensity warning. As to the evidence that the applicant had for some period of time slept in the same bed as the complainant, and the evidence of the applicant's attitude towards the complainant, such evidence could be characterised as relationship evidence. It did not give rise to any question of propensity and was not relied upon by either of the parties in that way.
BUCHANAN, J.A.:
[16](2004) 11 V.R. 129.
The order of the Court will be:
The application for leave to appeal against conviction is refused.
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