R v Dehaini
[2009] VSCA 145
•18 June 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 938 of 2008
| THE QUEEN |
| v |
| NAJI DEHAINI |
---
JUDGES: | ASHLEY and DODDS-STREETON JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 June 2009 | |
DATE OF ORDERS: | 11 June 2009 | |
DATE OF REASONS FOR JUDGMENT: | 18 June 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 145 | |
JUDGMENT APPEALED FROM: | R v Dehaini (unreported, County Court of Victoria, Judge Parsons, 3 December 2008) | |
---
CRIMINAL LAW – Conviction – Sexual penetration of a child under the age of 16 and indecent act with a child under the age of 16 – Age of the complainant – Whether the Crown excluded beyond reasonable doubt that the applicant had a belief that the complainant was at least 16 years of age or that there were reasonable grounds for such a belief – Whether verdicts unsafe and unsatisfactory – Application granted, appeal allowed, judgment and verdicts of acquittal entered.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C J Ryan SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr D A Dann | Galbally & O’Bryan |
ASHLEY JA
DODDS-STREETON JA:
On 11 June 2009, the Court granted Naji Dehaini (conveniently ‘the applicant’), leave to appeal against his convictions on 18 August 2008 in the County Court at Melbourne, when a jury returned guilty verdicts on the following counts:
Count 1
Indecent act with a child under the age of 16
Count 3
Sexual penetration of a child under the age of 16.
Count 5
Sexual penetration of a child under the age of 16.
We then allowed the appeal, set aside the convictions and sentences thereon and ordered that there be acquittals. These are our reasons for doing so.
Background and Circumstances of Offending
The applicant was born in Lebanon on 16 April 1961 and was aged 45 at the date of the offending and 47 at the date of sentence. He emigrated to Australia with other family members in 1986 and was employed as a spray painter. He married in 1992 and, at the time of the alleged offending, lived with his wife and three children aged about 6, 10 and 13 in Dandenong.
When the applicant lost his job, he taught spray painting at a two-month pre-apprenticeship course for juvenile offenders aged between 15 and 19, known as ‘Hand Brake Turn’.
Persons attending the Hand Brake Turn course were rotated for two week periods in groups of seven or eight between different areas, including the spray painting classes taught by the applicant.
In late 2005, the complainant, ‘C’, who was born on 12 September 1990 and had just turned 15, applied to and attended the Hand Brake Turn course for six or eight weeks between 24 October and December 2005. C attended the applicant’s classes.
C’s Evidence
C gave evidence by VATE tape that whilst he was attending the Hand Brake Turn course, the applicant asked him his age and he replied that he was 15. He testified that he did not tell the applicant his date of birth or anything more specific about his age. C recalled that he was one of the youngest persons doing the course.
After completing the course, C was charged with offences and remanded in a youth training centre for three and a half months. He was released on a youth supervision order. In August 2006, C met the applicant by chance in Dandenong.
The applicant agreed to help him get a job. On Friday, 18 August, C telephoned the applicant and they agreed to meet in Dandenong at about 10 o’clock on Monday, 21 August 2006.
C testified that when the applicant said that he needed to drop off groceries at his house, they drove there and sat in the lounge room. The applicant offered C a glass of water, in which he noticed white flakes and bubbles. They discussed sex and the applicant played a DVD depicting young people having sex. The applicant said he had had a gay relationship which was okay. C testified that he felt drowsy after drinking the water, which he subsequently believed to be drugged.
The applicant invited C into the bedroom. C testified that the applicant ‘had his mouth on my penis … sucking it’ and had also sucked his nipple. The applicant also kissed ‘my neck and stuff as well’. C did not remember removing his clothes, but woke up lying on his chest, naked with the applicant’s penis in his anus, while the applicant was lying on top of him. He thought that he told the applicant that it hurt, cried ‘what the fuck are you doing’ and struggled to get up, but the applicant resisted, saying ‘no it’s alright’.
C testified that after the applicant put his penis in C’s anus, he grabbed a razor and put the handle in his own anus and used soap as lubricant.
C testified that the applicant held him down on the bed, but he forced his way up with the applicant on his back. He succeeded after a couple of minutes and pushed the applicant up against the wall. The applicant then repeatedly pleaded with C not to tell anyone what had happened.
C testified that the applicant drove him to the station and during the journey, offered him money not to tell anyone. The applicant pulled the car over, said he could go to gaol and offered C $100, which he accepted.
C testified that he caught the train home and telephoned his mother, who told his sister to meet him at the station. His mother met them and they went to the police. He told his mother what had happened. After the police interview, he was examined by a doctor.
In cross-examination, defence counsel put to C ‘I suggest that the sexual activity that took place that day was with your consent and with your understanding as to what was going to take place. What do you say about that?’ C stated: ‘No. Plus a 15 year old can’t give consent anyway.’
C stated that the incident on 21 August 2006 was about three weeks before his sixteenth birthday.
C conceded that there was no discussion about his age on that day (21 August 2006) but stated ‘No but he knew my age’.
Defence counsel asked: ‘He knew that you were 15 the year before, did he? Is that what you’re saying?’ C replied: ‘Yes.’
Dr Luigi Marino, a doctor employed at the Victorian Institute of Forensic Medicine, gave evidence that on 21 August 2006 he examined C. He observed bruising, abrasions and an anal fissure and took blood and urine samples.
Detective Senior Constable Emanuel Tauirau gave evidence that the blood and urine samples taken by Dr Marino did not reveal the presence of drugs.
The defence case
The defence case was that:
1.Sexual acts occurred between the applicant and C but were consensual. C was not drugged. C initiated the contact with the applicant and suggested the return to the applicant’s house. C invented the allegation of the water containing flaky fragments said to be drugs. C initiated the conversation about sex, admitted a homosexual relationship with his male friend, discussed his preferred sexual positions, claimed to have an erection, requested a more erotic DVD, initiated the undressing, asked to go to the bedroom and willingly took part in sexual activity. The allegation that the applicant placed a razor handle in his anus was a fabrication.
2.C was alert throughout and agreed that the applicant would put his penis in C’s anus to try it out. When told that the attempt hurt, the applicant immediately stopped.
3.C had multiple convictions for a large number of offences, involving violence and dishonesty, including assault, burglary, theft and stealing motor vehicles.
4.C had accused the applicant, because he wished to, and did, obtain money from him, which the applicant had offered in any event.
5.C went to the police station after the incident, but initially only reported his bicycle stolen and did not say anything about the allegations. He then told his mother and subsequently reported the allegations to the police.
Applicant’s record of interview
The applicant took part in a police interview on 23 August 2006.
He stated that:
1.C was a student in the 2005 Hand Brake Turn course, in which the applicant taught. After C left the course, the applicant met him on Monday, 21 August after C had telephoned him on the preceding Friday and asked to meet to discuss help with a job. They arranged to meet at 10.00 am in front of a supermarket in Dandenong.
2.C suggested that they go to the applicant’s house. The applicant gave C a glass of water, but denied that he put drugs in it.
3.The applicant stated that C told him about his homosexual relationship with a male friend, half removed his clothes in the lounge and invited the applicant to ‘let’s enjoy ourselves – suck each other ok’.
4.C said he was not comfortable in the lounge room and asked to go to the bedroom. C removed all his clothes first and had an erection. They kissed. First, they tried ‘the 69 position’ which C did not like so the applicant desisted. C suggested he would lie on his stomach and they would have intercourse, but halfway through the applicant’s attempt at anal penetration, C said that it hurt and the applicant immediately stopped.
5.After that, C became aggressive, got dressed and demanded to be taken to the station. C threatened to smash the applicant’s head and said ‘give me money or I tell’. C also accused the applicant of putting something in his drink. He asked for $100, and the applicant (who was intending to give him money anyway) complied.
It was put to the applicant that C alleged that the applicant made him promise he would not tell anyone, because the applicant might go to gaol. The following exchange occurred:
I said look what happened today, if you say something, probably I would go to jail! But I said when he start asking me for some more money, I said to him, Look I take you to police station. You make the allegation, that’s a --- I didn’t invite you for that, you know, and do the initiative of it. And – and I’m ready to take you to a police station, tell them whatever you want. Probably I go to jail, but you think that’s fair for you, I don’t mind …’
Alright so you did say to him that you would go to jail if he told anybody?
I said to him, Probably they will put me to jail if they found out what went on, but how would you feel because you’re the one who invited me to that. I didn’t push you into anything.
The applicant was asked whether he believed that his conduct was wrong, as follows:
Do you think what you did to C is wrong? By that, I mean
Probably.
Do you think that by you having sexual intercourse with [C], do you think that’s wrong?
Probably after, that I felt like it wasn’t probably appropriate. Which is make me decide … not to deal with young guys and I throw away all the DVDs I have …
The applicant stated that C suggested having oral sex, suggested the move to the bedroom and suggested that the proposed sexual conduct ‘doesn’t bother me at all’. The following exchange occurred:
So what you are saying … is that C was a willing participant in the sexual activity.
Yes, I believe that 100%
And that he initiated it?
Yes. Unless by doing that, he knows probably what’s the law. It means and set me up to try to probably bribe or blackmailing me.
Why would he try and blackmail you or set you up?
‘Cos he probably found out that I’m adult he is a kid probably his word will be more heard than mine. According to his opinion after that, he threatened me when I drop him off at the station.
The applicant stated that he had known C since he attended the course from 24 October 2005 up until just before Christmas, when C graduated and received a certificate.
The applicant stated that C was always in trouble. He did not attend on one occasion and had given the applicant his mobile telephone number. After the course, C was ‘locked up’ due to stealing cars and following his release (when they met by chance a month prior to the incident) asked the applicant to help him get a job. They exchanged mobile telephone numbers.
When asked ‘how old is C?’ the applicant stated that when C was doing the course, he ‘then said he was 15’. In response to the question ‘So now he’s 16? Do you agree he’s 16?’ the applicant responded: ‘That’s what I understand’.
When again asked, ‘At the time … how old did you say he was?’ the applicant stated ‘When he was doing the course of Hand Brake Turn, he was 15’.
After describing the incident, the applicant was again asked ‘How old do you think C is?’ He stated: ‘I believe he’s 16’.
The applicant stated:
I asked him what – what do you like to happen – like what do – do intercourse to each other? He said “I prefer by 69 thing, which is sucking each other off”.
The applicant stated that he put C’s penis into his mouth for a short time.
The applicant stated ‘I said to him, “Look could be what happens [the applicant go to gaol] ‘cos its wrong and ‘cos I am family person, you know.”’
The applicant was asked:
So what do you think you might go to gaol for? What do you think you’ve done wrong?
I’m not sure. If he’s, like, say anything wrong and wasn’t evidence in there then probably they take it me, that’s one part.
The Charge
In relation to count 1, the judge charged the jury as follows:
Even if you find that the prosecution has proven all three elements of this offence, Mr Dehaini will not necessarily be guilty of this offence. This is because in certain circumstances, consent will be a defence. The law states that consent will only be a defence if the accused believed on reasonable grounds, that the complainant was at least 16 years old at the time of the alleged penetration. As a result, the prosecution must prove beyond reasonable doubt either, that Mr Dehaini did not believe that C was aged 16 or older at the time of the alleged penetration, or that Mr Dehaini did not have reasonable grounds to believe that C was aged 16 or older at the time of the alleged penetration.
For there to be reasonable grounds for a belief, the belief must be based on facts which would have caused a reasonable person to believe the same thing. So the prosecution must prove that even if Mr Dehaini may have believed C was 16 or older, a reasonable person in his situation would not have reached that conclusion based on the facts known to Mr Dehaini. I have already outlined those arguments before. That is, counsel's arguments with regard to those matters.
If the prosecution has proved beyond reasonable doubt that Mr Dehaini did not believe on reasonable grounds that C was at least 16 years old at the time of the alleged penetration, then consent will not be a defence and will not be relevant to your determination of the accused's guilt. If however, you find that this has not been proven, then you will need to determine whether the prosecution has proved that C did not consent to the alleged act of sexual penetration and that Mr Dehaini was aware that C was not or might not be consenting.
The judge summarised the important parts of the evidence as follows:
I am briefly going to remind you of the arguments of counsel. Ms Marcou pointed out the issues of time, the date of his birth, that at the offence date he was 15. That the timing of the tapes were 9 November '07. And then the second and third tapes were 7 and 11 August '07. Mr Dehaini at the time was 45. And she reminded you of their relationships and the basis on which they had met and that C, of course, was 15 at the time, three weeks short of his 16th birthday. That Mr Dehaini was in the role of an educator with regard to him, in the course. And she said you should accept C as a witness of truth. And the Crown does not shy away from the fact that he has offended people by swearing and the way in which he conducted himself, but nevertheless he was giving an honest account of what happened on that day. And she said that you could have a look at the consistency of his account and that would stand up. And she said particularly with the way C reacted to suggestions that he was the instigator and was a homosexual.
Plea Hearing
In addition to the counts upon which he was found guilty, the applicant was presented, but acquitted, on two counts of rape. At the plea hearing on 20 November 2008, his Honour stated that, given the jury’s verdict, he would sentence the applicant on the basis that the sexual activity was consented to; that C, notwithstanding what he said, was not drugged and was a willing participant in the sexual activity; and on the basis that the applicant had a ‘belief that C was 16 years of age, although the jury were not [sic] satisfied[1] beyond reasonable doubt that there were no reasonable grounds for such a belief’.
[1]Clearly, the judge meant that the jury were satisfied that there were no reasonable grounds.
Defence counsel stated:
Either way, there is a concession as to the state of [the applicant’s belief] although obviously that’s tempered by the finding in relation to reasonable grounds.
Grounds of Appeal
The applicant’s proposed notice of appeal against conviction stated:
GROUND 1: The Learned Trial Judge erred in directing the jury that in assessing whether there were reasonable grounds for the Applicant’s belief that the Complainant was 16 years or older – the jury should determine whether a reasonable person would have had such a belief – rather than directing the jury that they should determine whether the belief held by the accused person was reasonable.
GROUND 2: The guilty verdicts of the jury were unsafe and unsatisfactory.
Principal Contentions on Appeal
Before us, the applicant relied only on ground 2. He contended that the conviction was unsafe and unsatisfactory.
In M v R, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ (in their joint judgment) stated:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, in terms of a verdict which is unsafe or unsatisfactory … other terms may be used such as ‘unjust or unsafe’ or ‘dangerous or unsafe’. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1) [of the Criminal Appeal Act 1912 (NSW)]. The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.
…
The question which the court must ask itself is whether it thinks upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard witnesses. On the contrary, the court must pay full regard to those considerations. [2]
[2](1994) 181 CLR 487, 492-3; [1994] HCA 63.
In August 2006, s 45 of the Crimes Act 1958[3] relevantly provided:
[3]Section 45 was amended in December 2006 as follows:
45Sexual penetration of child under the age of 16
(1)A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.
(2)A person who is guilty of an offence against subsection (1) is liable –
(a)if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, under the age of 10, to level 2 imprisonment (25 years maximum); or
(b)if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 10 and 16 and under the care, supervision or authority of the accused, to level 4 imprisonment (15 years maximum); or
(c)in any other case, to level 5 imprisonment (10 years maximum).
(3)Subsection (1) does not apply to an act of sexual penetration if –
(a)the child is aged between 10 and 16; and
(b)the persons taking part in the act are married to each other.
(4)Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence the child was aged 10 or older and -
(a)the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older; or
(b)the accused was not more than 2 years older than the child; or
(c)the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child.
(4A)If consent is relevant to a charge under subsection (1), the prosecution bears the burden of proving lack of consent.
…
45 Sexual penetration of child under the age of 16
(1)A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.
(2)A person who is guilty of an offence against sub-section (1) is liable –
(a)if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, under the age of 10, to level 2 imprisonment (25 years maximum); or
(b)if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 10 and 16 and under the care, supervision or authority of the accused, to level 4 imprisonment (15 years maximum); or
(c)in any other case, to level 5 imprisonment (10 years maximum).
(3)Sub-section (1) does not apply to an act of sexual penetration if –
(a)the child is aged between 10 and 16; and
(b)the persons taking part in the act are married to each other.
(4)Consent is not a defence to a charge under sub-section (1) unless at the time of the alleged offence the child was aged 10 or older and –
(a)the accused believed on reasonable grounds that the child was aged 16 or older; or
(b) the accused was not more than 2 years older than the child; or
(c)the accused believed on reasonable grounds that he or she was married to the child.
…
In August 2006, s 47 of the Crimes Act 1958[4] relevantly provided:
[4]Section 47 was amended in December 2006 as follows:
47 Indecent act with child under the age of 16
(1)A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married.
Penalty:Level 5 imprisonment (10 years maximum).
(2)Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence –
(a)the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older; or
(b)the accused was not more than 2 years older than the child; or
(c)the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child.
(3)If consent is relevant to a charge under subsection (1), the prosecution bears the burden of proving lack of consent.
47 Indecent act with child under the age of 16
(1)A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married.
Penalty:Level 5 imprisonment (10 years maximum).
(2)Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence –
(a)the accused believed on reasonable grounds that the child was aged 16 or older; or
(b)the accused was not more than 2 years older than the child; or
(c)the accused believed on reasonable grounds that he or she was married to the child.
The applicant submitted that, given the date of the conduct comprising counts 1, 3 and 5, the Crown bore the onus of proving beyond reasonable doubt either that:
(a)the applicant did not believe that the complainant was at least 16 years old; or
(b)that there were no reasonable grounds for such a belief.
As the applicant submitted, on the plea, it was accepted that the applicant believed that the complainant was 16 at the time of the alleged offending. There was little emphasis on that issue below.
Before us, however, the respondent contended that the jury were entitled to find both that the applicant did not have a belief that C was at least 16 years’ old and that there were no reasonable grounds for such a belief.
The respondent submitted that (as was not disputed) the objective facts known to the applicant left open the possibility that C had not yet attained 16 on 21 August 2006. Further, the applicant’s acknowledgement in his conversation with C in the car (conceded and reiterated in the police interview) that he might go to gaol related to his knowledge or suspicion that C was under 16.
Counsel for the applicant acknowledged that any concession at the plea about the applicant’s belief did not bind this Court. He nevertheless contended that the respondent’s submissions based on the applicant’s comments about going to gaol were essentially directed at consciousness of guilt, on which the trial judge did not direct the jury. The applicant submitted that, in such circumstances, it was inappropriate to reopen, on appeal, the question of the applicant’s belief.
The applicant conceded that it would have been open to the jury to convict him even if he had the relevant belief, if there were no reasonable grounds for it. He submitted, however, that the following matters must have left a jury, acting reasonably, with reasonable doubt on that issue:
(a)the course was for persons aged between 15 and 19 and students had to be at least 15 when they applied, in advance, to enrol;
(b)the course took place between 24 October 2005 and December 2005 and the complainant told the applicant during the course that he was 15;
(c)the applicant was aware that, during the period between the conclusion of the course and 21 August 2006, the complainant had been living away from home, had been stealing cars, had been incarcerated and had had sexual experiences. Such life experiences would fortify a belief that the complainant was more mature; and
(d)the complainant, who had an extraordinary history of offending, presented as aggressive, violent and criminally experienced, which would have been evident to the jury when they saw the VATE tape.
The applicant submitted that, in such circumstances, given the time frame involved and the complainant’s known life experience, the jury had been obliged to find that there were reasonable grounds for his mistaken belief that the complainant was 16 at the date of the alleged offending, or more accurately, that the Crown must have failed to exclude the existence of reasonable grounds for such belief.
Discussion
In our opinion, on the basis of an independent assessment of all the evidence, the applicant’s conviction was, even allowing for the advantages enjoyed by the jury, unsafe and unsatisfactory.
We are not persuaded that it was open to the jury to find that, contrary to the respondent’s concession on the plea, the applicant did not believe that C had attained the age of 16 on 21 August 2006.
The applicant consistently asserted that he believed that C was 16 years of age. C testified that he told the applicant that he was 15 while he was doing the course, which commenced about ten months prior to 21 August 2006. The applicant’s statements (admitted in his record of interview) that he might go to gaol appeared, when read in context, to relate to his apprehension that C’s testimony would be preferred in relation to the alleged lack of consent or administration of drugs, rather than to a suspicion that C was younger than 16 at the relevant time.
The conclusion that the applicant believed that C was 16 was fortified by the other circumstances on which he relied before us, which also constituted a basis for the necessary reasonable doubt that the applicant had no reasonable grounds for the belief. The applicant knew that C was 15 while he was doing the course between 24 October and December 2005 and had to be at least 15 years old before applying in advance to enrol in the course. The applicant did not know C’s date of birth or any more precise details of his age and was aware of his activities between completing the course and 21 August 2006.
While those matters did not exclude the possibility that (as was the case) C’s age fell short of 16 by a few weeks or days, the evidence rose no higher than that. The possibility that C was not yet 16 did not suffice to discharge the Crown’s obligation to exclude, beyond reasonable doubt, either that the applicant had a belief that C was at least 16 years of age or that there were reasonable grounds for such a belief.
In all the circumstances, in our opinion, the guilty verdicts were, on the evidence, unsafe or unsatisfactory and should not have stood.
- - -
0