R v Dick
[2008] VSCA 176
•11 September 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 298 of 2007
| THE QUEEN |
| v |
| BRENDON MICHAEL DICK |
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JUDGES: | VINCENT, DODDS-STREETON and WEINBERG JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 August 2008 | |
DATE OF JUDGMENT: | 11 September 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 176 | |
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Criminal Law – Conviction – False imprisonment – Applicant acquitted of rape and indecent assault but convicted of false imprisonment – Jury rejected account given by alleged rape victim – Whether sufficient evidence to convict applicant in light of jury’s rejection of alleged rape victim’s evidence – Application for leave to appeal granted and appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble SC | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr J P Dickinson with Mr J J Lavery | Brugman Mellas |
VINCENT JA:
DODDS-STREETON JA:
WEINBERG JA:
The applicant, Brendon Michael Dick, now aged 20, was tried in the County Court on one count of false imprisonment, one count of indecent assault and one count of rape. After a trial that ran for several days, he was convicted on 6 September 2007 of the count of false imprisonment but acquitted of the remaining two counts. The trial judge recorded a conviction but adjourned a further hearing of the matter for a 12-month period upon the applicant undertaking to be of good behaviour during that time.
The circumstances surrounding the commission of this offence were somewhat unusual. The applicant, then aged 18, had been living at the time of the offence at a community care facility managed by the Department of Human Services. He was there because no suitable alternative accommodation could be found for him.
At the facility, he befriended two other residents, LC, a man in his 30s, and AT, a woman in her mid-40s. Both LC and AT suffered from significant mental impairment.
The events that gave rise to the charges brought against the applicant occurred on the evening of 8 March 2006. The applicant, together with another young man of a similar age named Ben, went to LC’s room. They tied LC’s hands behind his back and blindfolded him. LC was then taken against his will from his room along a corridor to the room of AT. There, various sexual acts were performed upon him by AT without, according to him, his consent. LC was the victim of count 2, namely, the indecent assault. AT was the victim of count 3, namely the rape.[1] Put simply, the Crown case was that the applicant and Ben jointly coerced AT into sucking LC’s penis.
[1]Section 35(1) of the Crimes Act 1958 defines sexual penetration so as to include the introduction by a person of his penis into the mouth of another person.
AT was the first witness called. Her evidence in chief was given by VATE tape. She said that on the night in question, the applicant and another man whom she did not know (but clearly on the evidence was Ben) came into her room and asked her to have sex with LC. She said ‘no’. Subsequently the applicant led LC into her room. His hands were tied and he was blindfolded. The applicant was holding him by the arm. Either the applicant or Ben insisted that AT kiss LC and ‘give him a head job’. AT said that she did not wish to do so but felt threatened by the two men because they would not leave her room. She said that they then pulled LC’s pants down and pushed him onto the bed. They told her to pull his jocks down, which she did. LC was resisting but AT did what she was told. She sucked LC’s penis but said she did so against her will. The applicant and Ben were grinning throughout and then they left the room.
Under cross-examination, AT gave a somewhat different account. While adhering to the essential thrust of her evidence in chief, she said that Ben had come into her room first, then the applicant, and LC last. She could not say who had pushed LC onto her bed. She agreed that she had played with LC’s penis for a time and said that she had done so ‘just for the fun of it’. She agreed that when LC complained about what had happened, she was concerned that she might be evicted from the facility. She accepted that in her statement to the police, she had wrongly attributed to the applicant the suggestion that she go to LC’s room and have sex with him when, in truth, she could not say who had made that suggestion.
In his VATE tape, LC’s evidence was that the applicant and Ben had come into his room, grabbed him, and tied his hands behind his back. He said that he had resisted initially but eventually gave in. He then allowed them to tie him up because he thought that they were ‘mucking about’. He said that he was blindfolded and led along a corridor to AT’s room. He said initially that it was the applicant who led him to the room but conceded immediately that he had no idea whether that was correct. It could have been the applicant, or it could have been Ben, but he thought that it was one person acting alone. He said that after he found himself in AT’s room, she began playing with his penis and eventually sucked it. After it was over, she apologised. According to LC, the applicant and Ben thought the entire incident was a joke.
Under cross-examination, LC also resiled somewhat from what he had said in his VATE tape. He agreed that he had said, at one point, that it was the applicant who led him from his room to AT’s room. However, he again acknowledged that he could not say whether that was so or whether it had been Ben.
LC repeated what he had earlier said regarding having allowed himself to be tied up and blindfolded because he thought that the whole thing was a joke. He told the jury that, having been blindfolded, he had no idea where he was being taken. He did not know that he was in AT’s room when he first arrived there. Neither the applicant nor Ben said anything at that stage but he could hear them laughing.
LC then gave a detailed description of what AT had done to him. He said that he had not wanted her to suck his penis and implied that he had resisted. After it was all over, the blindfold was removed. AT was in the room but neither the applicant nor Ben was present.
The transcript of what LC then said reads as follows:
I’m sorry? --- It was just all a big joke.
It was all a big joke? --- Yes. I let them do it to me.
Then once your hands were tied behind your back someone put a blindfold on you? --- Yes, that’s what they done. I can’t say which one it was, because I couldn’t even see.
Then once that was done you don’t know whether it was Brendon or Ben that did everything from that point on with - - - ? --- It was probably anyone. I can’t say for sure. I’m not lying.
No, that’s all right? --- I’ve got to get my facts right first.
You can’t blame it all on Brendon ‘cos Ben was there too.
That’s right. Someone led you down to [AT]’s room? --- Yes, I don’t know which one it was. It could’ve been Ben as far as I know.
Whoever it was though when you were being led down to [AT]’s room you didn’t know that it wasn’t a joke anymore, did you? --- No.
Because if you’d known it wasn’t a joke anymore you would’ve done something to stop it, wouldn’t you? --- I don’t know what I would’ve done.
I’m just saying though, you know, as you’re being led to [AT]’s room you didn’t try and struggle with the people leading you, or person leading you I should say? --- I just thought it was mucking around.
Just thought it was mucking around? --- I didn’t know what they were doing.
You didn’t yell out, for the same reason, because you thought it was just mucking around? --- First of all I thought it was mucking around. I don’t know what they were doing. I couldn’t even see anyway. No use me yelling out, no one would be able to hear me. No one in the room’s sleeping.
One of the other things I was going to say is this: you didn’t even know whose room you were being led to? --- No, I didn’t. It was that dark, I couldn’t see nothing. (Indistinct) it was that dark and I didn’t know where they were taking me. (Indistinct) in his room as far as I know.
You knew that neither Brendon nor Ben would do anything (indistinct) to you themselves? --- No, they’re not stupid.
Then when you’re led to another room you would’ve worked out that there was someone else in that room? --- I didn’t know that.
LC was eventually asked whether he could say that the applicant had any involvement in the matter, apart from his role in having tied LC up and blindfolding him. LC replied that he could not even say that the applicant had been responsible for that. He could not say that the applicant had played any role whatsoever in the events that took place after LC left his room. He said that he did not believe that the applicant should be punished. He was ‘a good bloke’ and a friend. He described Ben as a clown who needed to be punished.
The Crown case, as opened to the jury, linked the applicant to the three counts on the presentment by suggesting that he, along with Ben, was involved in tying LC up and blindfolding him, compelling him to go from his room to that of AT, and then forcing AT to suck LC’s penis. At that stage, the Crown had no reason to believe that LC would depart in any way from the evidence contained in the VATE tape. The Crown expected that he would implicate the applicant directly not just in relation to the events that occurred in his own room, but also in having marched him along the corridor, and having forced him to remain in AT’s room against his will. AT, of course, testified that both the applicant and Ben were directly involved in everything that occurred after LC was brought to her room. She could not, however, give any evidence as to what had occurred before the three men arrived.
The Crown opening identified the deprivation of liberty that made up the count of false imprisonment as having three separate components. These were:
·tying and blindfolding LC in his room;
·compelling him to go from his room to AT’s room; and
·forcing him to remain in AT’s room until released.
As indicated, the Crown was entitled to put its case on this basis having regard to LC’s evidence in the VATE tape. On one view, LC said in that tape that he had not consented to any of these three separate acts and had therefore been deprived of his liberty over the entire course of these events.
Once LC resiled from any suggestion that he had been tied up and blindfolded against his will, and accepted that at that stage he regarded the incident as nothing but a joke, which he went along with, the Crown case necessarily had to be recast. By the time the trial judge came to direct the jury, it was perfectly obvious that the Crown no longer relied upon the first of the three components that were said to constitute the actus reus of the first count. Her Honour told the jury that the deprivation of liberty upon which the Crown case ultimately rested had two parts: compelling LC to go from his room to AT’s room and forcing him to remain there against his will.
Her Honour’s direction would have been unimpeachable, in that regard, as would be the verdict on count 1, save for the fact that the jury acquitted the applicant of counts 2 and 3. That meant that they were not prepared to accept much of what AT said had taken place in her room since her evidence implicated the applicant squarely in forcing her to have had sex with LC against her will, and against his.
This casts new light on the conviction in relation to count 1. There is almost no evidence, apart from that of AT, which implicates the applicant in any deprivation of LC’s liberty (apart from that which took place in LC’s own room.) Yet LC openly conceded to the jury that he had gone along with what happened in his room because he regarded it as simply ‘mucking about’.
In these circumstances, the applicant contends that the conviction on count 1 is unsafe and unsatisfactory.
It is entirely understandable that the jury acquitted on counts 2 and 3. Both LC and AT were mentally impaired. AT had a history of making false complaints to the police, and others, and this was brought out in cross-examination. She had a motive to implicate the applicant and play down any responsibility that she might have borne for what took place. She agreed that she was concerned about being removed from the facility in which they all lived, and any suggestion that she had acted of her own volition, when she played with and sucked LC’s penis, might have led to her being evicted. In addition, AT’s evidence was hardly cogent. There were significant inconsistencies between the account that she gave the police and the evidence she ultimately gave at the trial. The jury’s acquittal on counts 2 and 3 almost certainly reflected the difficulties that they had with her credibility.[2]
[2]The Crown submitted that the jury might have rejected AT as a credible witness insofar as she recounted the events surrounding the oral sex, which she had with LC, but accepted her as a credible witness insofar as she placed the applicant in her room while LC was tied up and blindfolded. In the context of this case, that seems a somewhat remote possibility.
When one analyses the evidence given by LC, it falls short of implicating the applicant on count 1. The applicant’s record of interview takes the matter no further. He readily conceded that he had been involved in tying LC up and blindfolding him. He made no admission regarding anything that occurred thereafter. He said that he did not go into AT’s room until after she had had sex with LC. He said that he knew nothing about what had gone on previously.
Without AT, there would have been insufficient evidence to leave count 1 to the jury.
In our view, the jury ought to have had a reasonable doubt about the applicant’s involvement in either compelling LC to go to AT’s room or forcing him to remain there. The test laid down by the High Court in M v The Queen[3] is satisfied. There may have been evidence to sustain a verdict of guilty on count 1. There certainly would have been sufficient evidence to do so had the jury convicted on counts 2 and 3. However, having regard to their verdicts upon those counts, we think that, upon the whole of the evidence, it was not open to the jury to convict upon count 1. We consider that the evidence in relation to that count lacks probative force in such a way as to lead us to conclude that, even making full allowance for the advantages enjoyed by the jury, the applicant ought not to have been convicted on that count. The conviction on count 1 should be quashed.
[3](1994) 181 CLR 487
We should add for the sake of completeness that there were two other grounds of appeal argued. It was contended that the trial judge erred in failing to direct the jury as to the dangers involved in relying on the evidence of AT. It was argued in that regard that AT was an accomplice and an accomplice warning ought to have been given. Alternatively, it was submitted that a Faure warning was required.[4] It was also contended that her Honour erred in directing the jury that an element of the count of false imprisonment was that the conduct complained of was ‘without the complainant’s consent’ when the correct formulation was ‘against the complainant’s will’. It was submitted that this distinction was important in the context of this case.
[4]Director of Public Prosecutions v Faure [1993] 2 VR 497.
Having regard to our conclusion that the verdict on count 1 is unsafe and unsatisfactory, it is unnecessary to say anything further about these other grounds of appeal.
It follows that the applicant should be granted leave to appeal and the appeal be treated as having been heard and determined instanter. Accordingly, the appeal is allowed and the conviction on count 1 is quashed. In lieu thereof, there should be entered judgment and verdict of acquittal.
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