R v Gilbert
[2007] VSCA 216
•1 October 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 332 of 2006
| THE QUEEN |
| v. |
| ROGER JOHN GILBERT |
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JUDGES: | BUCHANAN and NETTLE JJA and CURTAIN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 October 2007 | |
DATE OF JUDGMENT: | 1 October 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 216 | |
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Criminal Law – Sexual offences – Severance of counts – Warning as to collusion – Uncharged acts – Warning sufficient – Delay in complaint – Directions to jury adequate – Verdicts not unsafe or unsatisfactory.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr S J Gannon | M V Ambrose & Associates |
BUCHANAN JA:
The applicant was arraigned in the County Court and pleaded not guilty to ten counts of indecent assault and three counts of rape. After a trial, the jury found the applicant guilty on eight counts of indecent assault and one count of rape. A plea was made and the applicant was sentenced to a total effective term of imprisonment of 45 months, with a minimum term of 25 months' imprisonment. The applicant now seeks leave to appeal against his convictions.
The Crown alleged at trial that the offences were committed at the Coles store in Moe. The applicant was employed there as a manager. The victims of the offences were said to be three women employed at the store to fill shelves at night, and who were responsible to the applicant. Each of the women depended upon their employment to relieve them from significant financial hardship. The offences were alleged to have occurred between 1 September 2003 and 30 September 2004.
The evidence of the first complainant, founding six charges of indecent assault on which the applicant was convicted, was that on one occasion the applicant approached the complainant and put his hands inside her shirt and rubbed her breasts over her brassiere; on another occasion placed his hands inside her brassiere and touched her breast; on another occasion when the complainant was kneeling, placed his hands inside her trousers, on her bottom outside her underwear; on another occasion placed his hands down the front of her trousers over her underwear in the area of her vagina; on another occasion placed his hands down her trousers and inside her underwear in the area of her vagina. The evidence of a second complainant, founding a count of indecent assault, was that the applicant grabbed her lower buttock as the complainant was walking past the applicant. A third complainant gave evidence that the applicant walked towards her, grabbed her breast and squeezed it. The evidence in respect of the charge of rape concerned the first complainant, who said that the applicant placed his hands inside her trousers, inside her underwear, and put his fingers inside her vagina.
The prosecutor led evidence from each of the complainants of the commission of similar acts amounting to indecent assault, which were not the subject matter of particular counts.
The first ground of the application is that the trial judge erred in refusing an application to sever the counts on the presentment to produce separate trials in respect of each complainant. Her Honour refused the application, saying:
"The Crown is entitled to rely upon the evidence of the three separate allegations in the way that has been submitted. It is probative of the issue in this trial and any prejudice will be dealt with by directions. The issue of collusion or concoction is a matter for the jury to assess when applying the directions that will be given."
Counsel for the applicant submitted that whether the counts should be severed depended to a significant extent upon whether the evidence of one complainant was admissible in respect of the count or counts concerning another complainant. It was submitted that the trial judge failed to consider this question. Further, it was submitted that the trial judge failed to consider whether the probative value of the propensity evidence outweighed the prejudice to the applicant in leading it.
In my opinion, the trial judge did consider and determine that the evidence of each complainant was admissible in respect of the counts concerning the other complainants in the manner contemplated by s 398A of the Crimes Act 1958. In the passage from her ruling which I have cited, her Honour ruled that the evidence of each complainant was admissible in respect of counts concerning other complainants, or, in other words, that all their evidence could be received as mutually supportive of their respective allegations.[1] In my opinion, the trial judge was entitled to reach that conclusion. There was an underlying unity between the evidence of each complainant to be found in the fact that the applicant was using his place of work, and his position, to exploit vulnerable employees, and that the applicant's conduct conformed to a pattern.[2] There was a sufficient connection in time and circumstances between the acts alleged to have been committed against each complainant to render the evidence of one admissible in support of the evidence of the others.
[1]Director of Public Prosecutions v Boardman [1975] AC 421 at 443-4 ; Hoch v R (1998) 165 CLR 292 at 301-2; Pfennig v R (1995) 182 CLR 461 at 477.
[2]Cf R v Papamitrou (2004) 4 VR 375.
A separate complaint is made about count 8, the count concerning the second complainant, who said that the applicant grabbed her buttock over her clothing as she walked past him. Counsel for the applicant submitted that the evidence was particularly prejudicial because it concerned the only offence alleged to have been committed against the complainant. The jury was likely to reason, so it was said, that if the applicant committed more serious and numerous offences against other complainants, he was more likely to have committed the single and less serious offence the subject matter of count 8.
The conduct constituting the count and the circumstances surrounding it were consistent with and reflected the underlying unity of all the offences. With careful directions, I do not see why the jury was more likely to reason inappropriately in respect of count 8 than the other counts.
An associated ground of the application was that the verdict on count 8 was unsafe and unsatisfactory in that it could not be concluded beyond a reasonable doubt that the conduct complained of was indecent, or that the applicant was aware that the complainant was not consenting or might not have been consenting.
The complainant gave evidence that the applicant was over-friendly "and touching me on the arm or on the shoulder, whereas, sort of, he'd keep going, where everybody else stopped". On one occasion he "grabbed both sides of my face to get a birthday kiss" and on a number of occasions kissed the top of the complainant's head.
The trial judge gave appropriate directions for the use by the jury of the evidence of uncharged acts. In my view, the uncharged acts gave a context to the evidence constituting count 8 which entitled the jury to conclude that the touching was indecent and that the applicant knew that he was forcing his attentions upon a woman who was not consenting.
The next ground of the application is that the trial judge failed to adequately instruct the jury as to the possibility that the complainant's evidence was the result of collusion. The trial judge told the jury in strong terms that before they could accept the evidence of any complainant, they had to exclude beyond reasonable doubt the possibility that the complainant had met and concocted the evidence, or that there was a real possibility that the complainants might have unconsciously influenced each other in making the allegations which they did. Her Honour reminded the jury that counsel for the applicant suggested that the fact that the allegations were similar was evidence that they had been concocted, and the complainants had done so because they were seeking monetary compensation in respect of the applicant's conduct. The trial judge analysed the evidence relating to the issue in some details.
In my opinion, the directions given by the trial judge were all that were required. Her Honour told the jury, with the full authority of a judge's office, that they must be satisfied that there was no collusion before they could use the disputed similar fact evidence as part of their reasoning. The trial judge elaborated upon this fundamental warning by appropriate references to the evidence.
With respect to the evidence of uncharged acts, counsel for the applicant submitted that, as the evidence was vague and concerned acts which were indistinguishable from charged acts, it could not throw light upon the relationship between the applicant and the complainants or set the applicant's conduct in context. Further, it was submitted that the trial judge failed to give separate warnings in respect of the charged acts alleged by each complainant, the uncharged acts alleged by each complainant and led as propensity evidence tending to support the credibility of each complainant, the uncharged acts alleged by each complainant and the uncharged acts as between complainants, which was not to be confused with or used as evidence of the charged acts.
In accordance with the principles stated in R v Grech[3], the trial judge identified the uncharged acts in respect of each complainant, directed the jury to consider the evidence of each complainant regarding each specific count, directed the jury that the evidence of uncharged acts was led to put that evidence in its proper context, and warned the jury that they could not use the evidence of uncharged acts as evidence of the charge itself, or use the evidence to engage in propensity reasoning. Her Honour also directed the jury that they were required to give separate consideration to each of the counts on the presentment in relation to the evidence of each complainant. In that context, a propensity warning was also given.[4]
[3][1997] 2 VR 609 at 614 (Callaway JA).
[4]See R v DCC (2004) 11 VR 129 at 132 (Callaway JA).
In my opinion, the directions met the requirements of this case. Having regard to the way in which the Crown mounted its case and the evidence which was led in the trial, in my opinion the trial judge's directions regarding uncharged acts, similar facts and propensity were appropriate to guard against any misuse of the evidence by the jury. It is not surprising that no exception was taken by counsel for the applicant at trial.
The next ground of the application concerned delay in making complaint. The complainants did not complain immediately, but only after they had spoken to each other about the applicant's conduct. The allegation of rape was not made until shortly prior to the committal hearing. The trial judge in her charge pointed out the delay and reminded the jury that the defence suggested that the delay reflected upon the credibility of the complainants. Her Honour told the jury that she was required as a matter of law to warn them that delay in complaining did not necessarily mean that the allegations were false and that there were often good reasons why victims of sexual assault might delay in complaining, and that was particularly so where a sexual assault was committed by a person in authority. Her Honour pointed to the evidence of the complainants that each of them was concerned not to place her employment at risk by complaining. The trial judge also told the jury that they were "entitled to use the lateness of the complaint when you do assess the question of whether or not a complainant's conduct is consistent with the allegations".
In my view, the trial judge's directions met the requirements of the law.[5] I do not think that the trial judge placed any undue emphasis on extenuating reasons for the delay. In my view the direction was balanced and in accordance with the words and spirit of s 61(1)(b) of the Crimes Act. Again, in my view, it is not surprising that no exception to this aspect of the charge was taken at trial.
[5]See Kilby v The Queen (1973) 129 CLR 460 at 465 (Barwick CJ).
Finally it was submitted that the verdicts were unsafe and unsatisfactory in that the jury could not conclude beyond a reasonable doubt that there was no concoction of evidence or collusion between complainants. Further, it was said that the trial miscarried because the directions given by the trial judge were so complicated and abstract that a reasonable jury could not properly apply them, and that the trial miscarried as a consequence of cumulation of some or all of the errors alleged in particular grounds.
It was a matter for the jury whether the witnesses had colluded in concocting their evidence. The evidence was capable of supporting a conviction on each count. In cases involving sexual assault and a number of complainants, the law requires a trial judge to give detailed instructions as to the use which the jury can make of the evidence, particularly where there is a danger that the jury may reason from the fact that an offender has committed one offence, to the conclusion that he is the sort of person who is likely to have committed another offence. In my view, the trial judge's directions in this case were clear and no more complicated than was necessary to fulfil the obligations cast upon her Honour, with due emphasis upon the requirement of proof beyond reasonable doubt of each offence and the dangers of propensity reasoning. If this submission were to be accepted, it would effectively amount to an admission that a trial of several charges of sexual offences involving
several complainants is now impossible. In my opinion, that point has not been reached.
For the foregoing reasons, notwithstanding the valiant efforts of counsel for the applicant, I would dismiss the application for leave to appeal against the conviction.
NETTLE JA:
I agree. I add observations on only two matters.
The first is that it seemed to me that much of the applicant's argument as to severance was based upon the words of Callaway JA in R v TJB[6]. What was there said should now be read in light of the observations of Winneke P in R v KRA[7], which has since been followed by this Court in R v Buckley[8] and R v Kerbatieh[9].
[6][1998] 4 VR 621, esp at 631.
[7][1999] 2 VR 708.
[8](2004) 10 VR 215 at 226.
[9][2005] VSCA 194.
The second matter concerns the applicant's submission as to the use which could be made of propensity evidence and the directions which needed to be given to the jury concerning that matter. Much of that submission was upon observations of Callaway JA, in R v Grech[10]. Those observations must now be understood, however, in light of his Honour's reconsideration of them in R v DCC[11].
[10][1997] 2 VR 609.
[11](2004) 11 VR 129.
I, too, would refuse the application for leave.
CURTAIN AJA:
I agree with the learned presiding judge and for the reasons given by him and with the judgment of Nettle JA. I, too, would dismiss the appeal.
BUCHANAN JA:
The order of the Court will be that the application for leave to appeal against conviction is dismissed.
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