R v Glennon (No 3)
[2005] VSCA 262
•17 November 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 310 of 2003
309 of 2003
| THE QUEEN |
| v. |
| MICHAEL CHARLES GLENNON (NO. 3) |
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JUDGES: | CALLAWAY, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 October 2005 | |
DATE OF JUDGMENT: | 17 November 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 262 | |
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Criminal law – Sexual offences against children – Two separate trials – Propensity warning omitted in relation to evidence of uncharged acts – Observation by judge, in relation to a previous acquittal, that a finding of not guilty is not a finding of innocence – Question asked of witness whether another witness was lying – Aggregation of defects or errors, none of which on its own would justify a new trial, causing first trial to miscarry – New trial directed - Directions regarding relationship evidence where there were three complainants – Directions regarding probability reasoning and innocent infection – Other grounds – No miscarriage of second trial – Whether sentence imposed following second trial offended principle of totality having regard to sentences previously imposed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr I.D. Hill, Q.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr C.B. Boyce | Victoria Legal Aid |
CALLAWAY, J.A.:
In 1999 the applicant faced three trials for sexual offences against children alleged to have been committed between 1973 and 1991. At the first trial he was convicted on 20 counts of indecent assault, three counts of attempted buggery of a person under 14 and one count of buggery. There were six complainants aged between 10 and 16 at the time of the offences. At the second trial he was convicted on one count of gross indecency, five counts of indecent assault and three counts of rape. At the third trial he was acquitted on one count and the jury were discharged in relation to the balance of the counts. A new presentment was filed over and the trial was adjourned.
On 17th December 1999 the applicant was sentenced for the offences of which he had been convicted at the first and second trials. He applied for leave to appeal against conviction and sentence in relation to both trials. The applications succeeded in part.[1] A new trial was directed in relation to the counts the subject of the second trial. The total effective sentence of eight-and-a-half years’ imprisonment imposed in relation to the counts the subject of the first trial was affirmed and a non-parole period of six-and-a-half years was fixed.
[1]R. v. Glennon [No. 2] (2001) 7 V.R. 631.
Presentment C0001839 was filed over on 22nd July 2003, preferring two counts of indecent assault (counts 1 and 3) and one count of rape in relation to a complainant whom I shall call “JC”. That presentment related to the new trial directed by the Court of Appeal. Presentment C00041839.1 was filed over on 21st August 2003, preferring 16 counts of indecent assault (counts 1, 2, 3, 5, 6, 8, 9, 14, 15, 17, 19, 20, 22, 23, 24 and 25), one count of taking part in an act of sexual penetration with a child under ten (count 4), six counts of gross indecency (counts 7, 12, 13, 18, 21 and 26), two counts of taking part in an act of sexual penetration with a child aged between ten and 16 (counts 10 and 11) and one count of rape (count 16). There were three complainants, boys whom I shall call “CK”, “JW” and “RW”. That presentment related to what would have been the third trial in 1999.
In the remainder of this judgment I shall refer to the trial on presentment C0001839 as “the first trial” and to the trial on presentment C00041839.1 as “the second trial”.
At the conclusion of the first trial on 8th August 2003 the jury found the applicant guilty on both counts of indecent assault and the count of rape. At the conclusion of the second trial on 10th October 2003 the jury found the applicant guilty on all counts except counts 2, 6 and 22. The learned trial judge heard a plea for leniency and, on 22nd October 2003, sentenced the applicant, on presentment C0001839, to 18 months’ imprisonment on each of the counts of indecent assault and five years’ imprisonment on the count of rape. His Honour sentenced the applicant, on presentment C00041839.1, to terms of imprisonment of 18 months on each of the counts of indecent assault except one, where a sentence of two years' imprisonment was imposed, and 12 months on each of the counts of gross indecency and to terms of imprisonment ranging from three to seven years on the counts of taking part in an act of sexual penetration with a child under ten, taking part in an act of sexual penetration with a child aged between ten and 16 and rape. Directions for cumulation resulted in a total effective sentence of 18 years' imprisonment on those two presentments. Further directions for cumulation, taking into account the sentence he was already serving, meant that the applicant would serve a further 20 years’ imprisonment commencing on 22nd October 2003. A new single non-parole period of 15 years, commencing on that date, was fixed pursuant to s.14 of the Sentencing Act 1991.
The applicant seeks leave to appeal against his convictions at the first trial, his convictions at the second trial and the sentence.
First trial
There were nine grounds of appeal in the notice of application for leave to appeal against conviction, but grounds 1, 2, 5, 7, 8 and 9 were not pursued. Leave was sought to add six additional grounds. The Court permitted those grounds to be argued but reserved its ruling on the application for leave to add them. It will sometimes be convenient to refer to them as grounds rather than proposed grounds. The grounds that were argued read:
“3.The learned trial judge erred in admitting the evidence of the witnesses Woodward and Danaher to the effect of children other than the complainant ‘sleeping’ in the applicant’s bedroom.
4.If the evidence referred to in ground 3 was admissible, the learned trial judge erred in failing to exclude it as a matter of discretion.
…
6.The failure of the learned prosecutor to call Vicky Dickason as a prosecution witness caused a miscarriage of justice.
…
10.A miscarriage of justice resulted from the failure of the trial judge to give any, or any sufficient, direction to the jury to consider each count separately; and in particular, the judge failed to direct the jury that a finding of guilt on one count did not dictate the verdict on the other counts.
11.A miscarriage of justice resulted from the failure of the trial judge to give any, or any sufficient, warning against propensity reasoning; and in particular -
(a) the jury were not directed that they should not reason that because the applicant had committed one of the charged offences he was the kind of person likely to have committed another such offence;
(b) the jury were not adequately instructed as to the use that they could make of the evidence of the uncharged acts;
(c) the jury were not warned against reasoning that if the applicant had committed any or all of the uncharged acts, he was the kind of person likely to have committed the charged offences.
12.The learned trial judge erred by failing to give an adequate Kilby warning as to the use that might be made of the delay in complaint.
13.The learned trial judge erred by failing to direct the jury that if the jury were to accept the evidence of Woodward and Danaher, the applicant was still to be accorded the full benefit of his earlier acquittal.
14.The learned trial judge erred when questioning the defence witness Dickason by suggesting to this witness that if a prosecution witness gave evidence contrary to Dickason’s evidence, he would ‘be telling lies on oath’.
15.A miscarriage of justice arose by virtue of an aggregate of errors.”
The background to the first trial sufficiently appears from R. v. Glennon [No. 2]. Having regard to my conclusion below, there is no need to say more about the facts than will be apparent from my discussion of the grounds.
Mr Boyce argued grounds 10 and 11 first. Evidence had been given of four uncharged acts, but the jury were directed only that they must not substitute that evidence for evidence of the offences charged. They were not told the reason the evidence was admitted, except that it was “part of the narrative” and “interwoven with the facts … relied on for the counts”, and they were not warned against propensity reasoning. In other words only the second of the three components of the direction customarily given in relation to uncharged acts was given, or the first and second components if the references to narrative and interweaving with the facts are regarded as sufficient to satisfy the first. The three components of the customary direction were set out in R. v. Grech.[2] The authorities are numerous.[3] Their most recent reaffirmation is to be found in the joint judgment of Warren, C.J., Maxwell, P. and Harper, A.J.A. in R. v. BAH(No. 2).[4]
[2][1997] 2 V.R. 609 at 614.
[3]R. v. DCC (2004) 151 A.Crim.R. 403 at 405 [2].
[4][2005] VSCA 197 at [12]-[17].
At first sight, the omission of the propensity warning is surprising. Two of the uncharged acts (the applicant’s allegedly supplying pornographic material to the complainant and allegedly fellating him) occurred on the same occasion as the charged acts, but his allegedly “cupping” the complainant’s genitals and attempting to fondle his genitals took place the day before and the day after respectively. Putting aside the possibility that the uncharged acts that occurred on the same occasion as the charged acts were part of the res gestae, the evidence of the uncharged acts was “[p]ropensity evidence” within the meaning of s.398A of the Crimes Act 1958, as that expression was interpreted in R. v. Best.[5] Its probative value had to be such that it was just to admit the evidence despite any prejudicial effect it might have on the accused. In the present case the evidence was admitted not to establish a relationship but to provide a context of intelligibility for the charged acts. There is no challenge to its admissibility.
[5][1998] 4 V.R. 603 at 606-608 and 616.
The reason a propensity warning was not given appears from the transcript. The judge discussed the matter with counsel and explained that he did not propose to give more than an anti-substitution direction. Counsel acquiesced in that course. Mr Hill submitted that it was appropriate: it was fanciful to think that the jury would reason that, because the applicant engaged in all or any of the uncharged acts, he was the kind of person who was likely to have committed the two indecent assaults and the rape; either the jury were going to believe JC or they were not; and defence counsel may have had a good forensic reason for acquiescing, namely a desire not to alert the jury to the possibility of propensity reasoning.
I accept Mr Hill’s submissions, subject to one qualification. There is a marked risk of propensity reasoning in cases of paedophilia. Ordinarily a warning is necessary in such cases, but it was open to the judge to consider that the warning was not necessary in the present case. Defence counsel’s position was significant. Nevertheless at least two items of propensity evidence, not contemporaneous with the charged acts, were received in evidence without the jury’s being warned not to reason from them that the applicant was the kind of person who was likely to have molested JC as charged. The omission of a propensity warning means that a stage was set on which other problems in the trial might assume an added significance when we come to ground 15.
It is convenient to turn next, out of the order of counsel’s address, to grounds 3, 4 and 13. Two witnesses, Woodward and Danaher, gave evidence of having seen children sleep in the applicant’s room at Karaglen on an occasion previous to the evening of the charged offences. Their evidence was led in rebuttal of evidence that it was expected another witness, Dickason, would give to the effect that children almost never slept in the applicant’s room. The occasion of which Woodward and Danaher spoke was an occasion in relation to which charges had been preferred and the applicant had been acquitted at a previous trial.
The judge accepted, as counsel submitted, that the applicant had to be given the full benefit of that acquittal.[6] His Honour considered, however, that the jury could accept the evidence of Woodward and Danaher that they had seen children sleep in the applicant’s room without calling the acquittal in question or undermining it. He explained the problem to the jury in the following terms:
“[Y]ou did hear that there was a court case in 1984 leading to an acquittal, which means of course that the accused was found not guilty of some charges. Now that acquittal would have to be given full weight by you if it was relevant, but I do not see that it is relevant in this case, but if you find it relevant in any way to do so, you have to give full weight to the fact that he was acquitted.
Let me say, and [defence counsel] made this very point himself relating to this case, and the same applies to that case, that a finding of not guilty is not a finding of innocence, and all I am saying that for is to illustrate that a finding of not guilty does not mean that any particular witness lied or was disbelieved on anything; and I mean we have heard evidence from two witnesses who apparently gave evidence in that matter, Danaher and Woodward, and that all came out in the course of the case.
All I am saying to you is when you are considering their evidence, the fact that there was an acquittal in 1984 is of no probative value in determining the value of their evidence. You may not accept it for other reasons. It is entirely a matter for you what you accept of what they said, but it would not be a proper application of principle to be influenced by the fact that there was an acquittal in 1984 influencing you as to what you make of their evidence.” (Emphasis added.)
[6]Garrett v. R. (1977) 139 C.L.R. 437 and R. v. Storey (1978) 140 C.L.R. 364.
For reasons that will appear later, I find it unnecessary to decide whether this evidence was properly admitted or should have been excluded in the exercise of the judge’s discretion. I also find it unnecessary to consider whether the direction sufficiently instructed the jury to give the applicant the full benefit of the acquittal. All I need refer to is the expression that I have italicized in the second paragraph.[7] It is true that a finding of not guilty may mean only that the jury were not persuaded of guilt to the criminal standard. A lawyer would readily understand his Honour’s train of thought in that paragraph: the earlier jury may have accepted that the witnesses saw children sleep in the applicant’s room but nevertheless have had a reasonable doubt as to his guilt of the offences with which he was then charged. The present jury may, or may not, have grasped that reasoning; but, in my respectful opinion, there is an unacceptable risk that one or more of them may have thought that the judge was saying that the applicant may have been guilty even though he was acquitted. In other words, he may have engaged in criminal activity with other complainants. If they thought that, they may have concluded that he was the kind of person who would indecently assault and rape JC. Remember that the jury, exceptionally in a case like this, have not been warned against propensity reasoning.
[7]Sometimes appellate courts say that a verdict of not guilty does not necessarily mean that the accused was innocent, but it is better to say that the verdict does not necessarily mean that a particular witness or piece of evidence was disbelieved. A person is innocent if he or she is acquitted. Be that as it may, the italicized words should not have been used to a jury, even with the explanation that immediately followed.
Turning to ground 14, I have already referred to the witness Dickason, who was the applicant’s cousin. She was the only witness called for the defence. Towards the end of her cross-examination, the following exchange took place:
“HIS HONOUR: Well, there’s just one thing I would like to say. (To witness) You say you wouldn’t tell – you wouldn’t have come here to tell lies on behalf of your cousin, you said that, didn’t you? ---That’s right.
But I gather you would say, wouldn’t you, on the – assuming your evidence is true about the sleeping arrangements, you would say, would you, that if a man came to court here and said that [at] a camp in August of ’83 there were children sleeping in – on several nights, sleeping with your cousin in his room and that you weren’t in there, that he’d be telling lies on oath?---That’s right.”
It is unnecessary to examine the cases on the propriety, or impropriety, of asking a witness whether, in his or her opinion, another witness is lying.[8] It was, with respect, very undesirable for the judge to ask the questions he did. Their effect was to pour cold water on the evidence of the only defence witness. I would not uphold the ground relating to this point if it stood alone but it, too, will have to be considered when I turn to ground 15, as I shall do next.
[8]See, among other cases, R. v. Cupid [2004] VSCA 183 at [36] and R. v. Buckley (2004) 10 V.R. 215 at 218 [9] and the cases there cited, beginning with Lord Esher’s observations in North Australian Territory Co. v. Goldsborough Mort & Co. [1893] 2 Ch. 381 at 385-386.
Barwick, C.J. made it clear in R. v. Ireland[9] and Batt, J.A. reiterated in R. v. Kotzmann[10] that an “aggregation of defects” or “aggregation of errors” ground may succeed though none of the defects or errors on its own involved a wrong decision on a question of law or a miscarriage of justice of the kind described in the opening words of s.568(1) of the Crimes Act. The authorities establish that a number of things occurring at a trial, none of them sufficient in itself, taken together, may show that the trial miscarried. As Barwick, C.J. said:
“Quite clearly, in my opinion, an aggregate of faults, none of which if it were the only fault, would afford a justification for making an order for a new trial, may properly lead to the conclusion that the trial, as a whole, had miscarried so that there should be an order for a new trial.”
R. v. Kotzmann itself was such a case. I have reluctantly concluded that this is such a case too.
[9](1970) 126 C.L.R. 321 at 331.
[10][1999] 2 V.R. 123 at 157 [114].
The omission to give a propensity warning, although justifiable in itself, was unusual and left the jury without any warning against propensity reasoning. The Crown alleged sexual offences of a repellent character committed against a boy aged 12. The risk of propensity reasoning in such a case is grave. Then the jury were told that the applicant’s acquittal on another occasion did not mean that he was innocent. Finally, whatever credit remained to the sole defence witness after she had been cross-examined was undermined by a question from the Bench. It is a terrible thing to invite JC to give his evidence again, and it may well be that he will not be required to do so; but, despite the judge’s strenuous efforts to be fair to the applicant, I am persuaded that he did not receive the trial required by law.[11] The convictions sustained by the applicant on the first presentment will have to be quashed, the sentences passed thereon set aside and a new trial directed.
[11]Compare BRS v. R. (1997) 191 C.L.R. 275.
In those circumstances the other grounds may be briefly dispatched. If the new trial proceeds, a Kilby[12] warning should be given in conventional terms. It need not be elaborate.[13]It would be better not to say that the jury may take the complainant’s delay in complaining into account only if the complainant did not have good reasons to delay or hesitate in complaining. Theoretically the victim of a sexual offence may have good reasons for delay but the delay may still be taken into account in deciding whether to accept his or her evidence. It would be preferable for the evidence of Woodward and Danaher not to be led. Its probative value is limited and its potential for causing trouble is considerable. Ms Dickason was not an eyewitness, nor was she in a position to give evidence as to JC’s presence at the camp. The Crown will not be obliged to call her if the prosecutor considers that her evidence is unreliable.
[12]Kilby v. R. (1973) 129 C.L.R. 460.
[13]R. v. TJB [1998] 4 V.R. 621 at 634.
I would grant leave to add the proposed grounds 11, 13, 14 and 15 but refuse leave to add the proposed grounds 10 and 12.
Second trial
There were 17 grounds in the notice of application for leave to appeal and notice had been given of a further eight proposed grounds. Grounds 1 to 7, 9, 10, 15 and 17 and proposed grounds 18 to 20 and 23 were not pursued. Again the Court permitted argument to be put but reserved its ruling on the proposed grounds. Again it will sometimes be convenient to refer to them as grounds. The grounds that were argued read:
“8. The learned trial judge misdirected the jury as to corroboration.
…
11.The learned trial judge failed to give an adequate Longman warning.
12.The learned trial judge misdirected the jury as to the way in which ‘improbability of coincidence’ reasoning applied in this case.
13.The learned trial judge failed to adequately direct the jury as to how:
(i)collusion; and
(ii)innocent infection;
affected the ‘improbability of coincidence’ argument.
14.The learned trial judge failed to adequately direct the jury as to how they may use evidence of uncharged acts alleged by one complainant when considering offences alleged by another complainant.
…
16.The charge was unbalanced in favour of the prosecution.
…
21.A miscarriage of justice resulted from the failure of the trial judge to give any, or any sufficient, direction to the jury to consider each count separately.
22.A miscarriage of justice resulted from the failure of the trial judge to give any, or any sufficient, warning against propensity reasoning; and in particular -
(a) the jury were not directed adequately or at all that they should not reason that because the applicant had committed an offence against one complainant he was the kind of person to have committed an offence against another;
(b) the jury were not directed adequately or at all as to how they were not to use the evidence of uncharged acts.
…
24.The learned trial judge erred in his description to the jury of the elements of the various offences alleged; and in particular, the elements requiring proof with respect to the counts of gross indecency.
25.A miscarriage of justice arose by reason of an aggregate of errors.”
The nature of the grounds is not such as to require elaborate discussion of the facts. The offences[14] were alleged to have occurred between 1986 and 1991. They began when CK was seven or eight years old. JW was 11 or 12 at the time of the counts relating to him and RW was between 12 and 14. Most, but not all, of the offences occurred at Karaglen, the rural camp acquired by the applicant.[15]
[14]The counts are summarized at [3] above. Counts 1 to 11 related to CK, counts 12 and 13 to JW and counts 14 to 26 to RW.
[15]See R. v. Glennon [No. 2] at 641 [19].
Mr Boyce argued grounds 14 and 22 first. At this trial evidence of uncharged acts was led to prove relationship and the three components of the conventional direction were given. The complaint is that the judge did not warn the jury against a particular form of reasoning and that his charge may have encouraged them to engage in it. The form of reasoning is this, that a relationship between the applicant and (say) CK could be regarded as making it more likely that there was a similar relationship between the applicant and JW or RW or even that the applicant committed the offences against JW or RW with which he was charged. The principal foundations for the submission were a reference in the relevant part of the charge to a “relationship, in the sense of fondness or passion or sexual attraction, between the accused and the complainants[16] in question” and, more particularly, the following passage:
“If you do accept it, it is a matter for you whether you accept the sort of relationship between Glennon and the complainants that has been suggested by the complainants and by the Crown in the presentation of the case, which, of course, the Crown goes on to argue, if you accept the relationship existed, if you accept Glennon had a fondness or sexual passion for one or all of the complainants, it is more likely that the offences occurred and that is valid reasoning, if you accept it.”
[16]This may be a transcription error for “complainant”.
It would have been better to say more clearly that evidence of a relationship between the applicant and one complainant was relevant to the offences said to have been committed against that complainant and not, of course, to the offences said to be committed against another or others; but I do not accept that the omission to make that point clearly should be upheld as a ground of appeal. In the first place, the passage in the charge I have set out above was followed immediately by a propensity warning. That is why Mr Boyce was constrained to argue not that the jury might have reasoned that, because of an offence against (say) CK, the applicant was more likely to have committed an offence against JW or RW but that they were likely to reason from the relationship between the applicant and CK. Secondly, no exception was taken. The substance of the charge was clear to counsel at the trial and it would have been clear to the jury. Thirdly, when his Honour returned to this point at the end of the charge, he said, “If you accept that evidence, you can use it in so far as it helps you to understand the nature and extent of the relationship between Glennon and [CK] or Glennon and [RW].”[17] In itself that may be equivocal, as Mr Boyce submitted in reply, but it reinforces my conclusion that the substance of the charge was clear to those at the trial.
[17]The relevant passage of the charge continued, “but again, you wouldn’t be entitled on other occasions to draw any inference that is adverse to Glennon about sexual activity occurring on other occasions.”
Turning to grounds 12 and 13, a number of complaints were made about the direction the judge gave concerning probability reasoning. (The nature of such reasoning has been explained before, most recently in R. v. DCC.[18] I need not do so again for the purposes of this judgment.) His Honour gave the jury a simple example. No doubt the example could have been improved, but I do not think for a moment that it misled them. Next, this part of the charge contained one of two obvious slips. His Honour said, “But if the Crown doesn’t satisfy you that there was no such collusion, no such fraudulent plan between the complainants, then you can proceed and may use [probability reasoning]”.[19] Plainly, “doesn’t” should have been “does”. The jury would easily have made the transposition.
[18]At 406 [7]-[8].
[19]The context is given in the passage set out in [29] below.
Another complaint was that the judge told the jury that the Longman warning applied when considering the evidence of each complainant as similar fact evidence in relation to another or others. That was said to be circular. All that his Honour meant was that the same dangers, arising from delay and failure of memory, applied and the jury should give that evidence the same strict scrutiny.
I come finally to a complaint that cannot be so briefly dispatched, although it is just as lacking in merit. (That is not to imply any disrespect for counsel’s argument. This was a difficult case, to which Mr Boyce had evidently given careful thought. He advanced every argument that could properly be advanced on behalf of the applicant.) The complaint is that the judge did not give the jury the directions required in relation to innocent infection as opposed to collusion. The directions reflected a passage in R. v. Glennon [No. 2]. It will be as well to set that passage out. I said[20]:
“A reading of the charges at these two trials prompts me to mention one other point before parting with this ground. If the jury are not satisfied beyond reasonable doubt that complainants did not collude, in the sense of fabricating their evidence, not only will that deprive the similar fact evidence in the case of its probative force but, more importantly, it will mean that the jury entertain a reasonable doubt about the truth of the complainants' allegations. Accordingly, a direction of the kind referred to in R v Best at 611 and 616 point 4 has independent significance only in a case falling short of outright fabrication. Where the issue is unconscious influence or innocent infection, the jury must be satisfied beyond reasonable doubt that that is not the explanation of the similarities on which the Crown relies before they use probability reasoning, but they may still convict the accused because they are satisfied of his guilt by the evidence directly relating to each count. There is a middle case, which Lord Wilberforce may have had in mind in R v Boardman when he referred to "collaboration", where a jury might think that complainants put their heads together to make their accounts consistent, thereby depriving the similar fact argument of its force, but that nevertheless the allegations of one or more of the complainants are true in substance. In those circumstances, too, it would still be open to them to convict.” (Emphasis in original; footnotes omitted.)
The “middle case”, referred to in the last two sentences of that passage, is not relevant here. We are concerned only with collusion and innocent infection.
[20]At 689 [160].
The following is part of the direction the judge gave to explain the need for the Crown to exclude collusion and innocent infection and the difference between the two:
“We have heard that it is part of the defence that the complainants have colluded, they have got their heads together, that the second and third complainants in time, that is, [JW] and [CK], have made their statements purely to support [RW] in what he said, presumably by reason of some plan, and that [RW] – he started off to get compensation, made the allegations and then the other two have planned to back him up – that is one proposition that has been floated. Well, the Crown have to dispel that beyond reasonable doubt. If they don’t, well, you couldn’t use the reasoning in question. Indeed, let me go one step further. Not only could you not use the reasoning, if they have got their heads together and falsely and deliberately through a plan made false allegations against Glennon, not only must you not use the reasoning, but you must acquit of all counts. So the Crown has to exclude the possibility of collusion, the reasonable possibility of collusion. If the Crown doesn’t prove beyond reasonable doubt that there is no such collusion, no such fraudulent plan, if the Crown doesn’t prove there is no such plan beyond reasonable doubt, then you must acquit. Clearly, you couldn’t use the reasoning, you wouldn’t need to, you would just have to acquit. But if the Crown doesn’t [sc. does] satisfy you that there was no such collusion, no such fraudulent plan between the complainants, then you can proceed and you may use the reasoning; but then the Crown has also got to disprove beyond reasonable doubt some innocent basis for the complainants all making similar complaints such as media publicity or rumour or some other explanation which I haven’t thought of. You would have to be satisfied beyond reasonable doubt that the similarity of complaint wasn’t due to an innocent explanation of that nature before you could use the reasoning. In that event, if you weren’t satisfied that you could exclude an innocent explanation, you couldn’t use the reasoning, but it doesn’t automatically mean that you must acquit as the case if it was a false plan. So if there remains at the end of your reasoning the possibility that there is some innocent or collusive explanation for the similarity of complaints, then you can’t use the reasoning in question and the onus is on the Crown to disprove those possibilities.” (Emphasis added.)
His Honour had earlier listed the points of similarity on which the Crown relied. Some of them were incidental, like beguiling the boys with ghost stories, initiation, magic rocks and the like. Others related to the offences themselves, such as masturbation, the use of a lubricant, simulated intercourse and anal penetration. Mr Boyce submitted that, at least with respect to the latter, if the jury thought there was a reasonable possibility of innocent infection, they could not be satisfied beyond reasonable doubt that the offences occurred. It was said that the judge should have so directed the jury or, at the very least, that the directions his Honour did give were misleading or unhelpful.
I would not uphold this submission. The judge correctly drew a distinction between a reasonable possibility of concoction, which would inevitably lead to an acquittal, and a reasonable possibility of innocent infection, which need not lead to an acquittal. It would still be open to the jury to be satisfied beyond reasonable doubt that one or more of the offences occurred. That would probably depend on the scope of the innocent infection that they thought was reasonably possible. They may have thought, for example, that innocent infection explained more than one complainant mentioning ghost stories or magic rocks but not that innocent infection explained the complainants’ description of the actual offences. There was no need to confuse the jury by drawing such a fine distinction. The applicant was sufficiently protected by the emphatic directions that were given to the effect that the jury must be satisfied beyond reasonable doubt of the elements of each offence.
The Longman warning (ground 11) contained the other slip to which I referred earlier. The judge said:
“Because this case has those features that I have outlined, the warning is that it is dangerous to convict on the evidence of a complainant unless you give the whole of the evidence careful scrutiny, but if you do give it careful scrutiny and you pay attention to the circumstances of the case and the warning that I have given you, if having done so you are satisfied of the truth and accuracy of the vital evidence on the counts from the complainants, then it is your duty to convict; otherwise, it is your duty to convict if you are not so satisfied.” (Emphasis added.)
Mr Boyce did not contend that that was relevant except as an adjunct to ground 25. Nothing more need be said about ground 11. The slip would have been obvious.
The jury were directed that the Longman warning applied to corroborative evidence and the direction itself invited the jury to look for such evidence. The prosecutor invited the jury to regard the similar fact evidence as corroboration. His Honour directed the jury that the Longman warning applied in the course of probability reasoning. It was said under cover of ground 8 that there was a danger of a vicious circle. I do not accept that submission. The substance of the matter is that the jury were repeatedly warned of the need for strict scrutiny.
Grounds 21 and 22 proceeded, I think, from a misreading of what I said in R. v. DCC. The critical issue is whether the jury were warned against propensity reasoning in the course of the directions relating to similar facts. They were so warned and nothing further need be said about these grounds.
The foundation for ground 24 was the following part of his Honour’s explanation of the elements of gross indecency:
“The elements of this are that the accused, firstly, commits or is in any way a party to the commission of an act of gross indecency or procures the act of gross indecency, which means brings about the commission. So the accused doesn’t have to be the actual actor here – he may be but he doesn’t have to be; he can either be the actor doing the grossly indecent act, which would amount to him committing it, or he could bring it about. In other words, he could, through his actions, bring about someone else, one of the kids, performing an act of gross indecency or an act that constitutes that. So it is either him committing it or him bringing it about or being a party to it. That is the first element.” (Emphasis added.)
Counsel submitted that the words I have italicized invited the jury to convict the applicant not on the basis pleaded in the presentment but on the basis that, although he neither committed an act of gross indecency nor procured it, he was a party to it in some other way. The risk was said to be acute in relation to counts 7, 13 and 26, of which the victim had no recollection and in relation to which the Crown had to rely on another witness. No exception was taken. I accept Mr Hill’s submission that the point is sufficiently met by the fact that the jury were provided with a chart briefly describing the particulars of each offence.
Nothing need be said about grounds 16 and 25. I have read the relevant part of the charge and, with respect, I do not consider that it was unbalanced. On the contrary, the judge summarized the arguments by reference to the issues. There were no errors or defects the aggregation of which would show this trial to have miscarried.
I would grant leave to add the proposed ground 24 but refuse leave to add the proposed grounds 21, 22 and 25 and refuse leave to appeal against the convictions sustained by the applicant at the second trial.
Sentence
The grounds of appeal against sentence are that the sentence offends the principle of totality and is manifestly excessive in all the circumstances. No complaint is made of the individual sentences. The complaint is solely as to the directions for cumulation.[21] No specific error was assigned but, it was submitted, the total effective sentence was outside the range.
[21]See [5] above.
The applicant had served approximately four-and-a-half years of the sentence of eight-and-a-half years referred to in [2] above. Accordingly, as Mr Boyce said, the sentence imposed on this occasion translated into a total effective sentence of 24½ years' imprisonment with a non-parole period of 19½ years or, if one takes account of the six years the applicant served in prison between 1991 and 1997 for earlier offences,[22] into a total effective sentence of 30½ years' imprisonment with a non-parole period of 25½ years. The applicant would be well into his 80th year by the time he served the sentence. Both the common law and s.5(2AA)(a) of the Sentencing Act preclude us from speculating as to whether he may be released on parole.
[22]R. v. Glennon [1993] 1 V.R. 97 and R. v. Glennon [No. 2] at 692 fn.127.
The sentences imposed on presentment C0001839 accounted for two-and-a-half years of the sentence imposed on both presentments. The sentences imposed on that presentment will have to be set aside. The sentences imposed on presentment C00041839.1 would, if undisturbed, result in a total further term of imprisonment of 17½ years commencing on 22nd October 2003 and a total effective sentence of 28 years’ imprisonment for all the offending beginning with the 1991 sentence.
I would not direct more cumulation in relation to the offences of which the applicant was convicted at the second trial.[23] The issue is whether it is outside the range to require the applicant to serve a further 17½ years' imprisonment commencing on 22nd October 2003. Whether or not that sentence is affirmed, a new non-parole period will have to be fixed.
[23]Compare RH McL v. R. (2000) 203 C.L.R. 452.
There is no doubt that a stern sentence was, and is still, required:
1.It was not contested that the applicant stood to be sentenced on all the 23 counts on which he was convicted at the second trial as a serious sexual offender. That entails the consequences prescribed in s.6D and s.6E of the Sentencing Act.
2.Section 6D requires the protection of the community from the applicant to be the principal purpose of the sentence, but general deterrence, denunciation and just punishment are of almost equal importance.
3.The offences were serious and despicable. They were crimes against three children committed over a period of years in breach of the trust both the children and their parents reposed in the applicant.
4.Whilst the applicant was not to be punished for putting the Crown to its proof, he is not entitled to any discount for co-operation or pleading guilty. He was responsible for a substantial part, though not all, of the delay that has occurred.
5.His criminal history reveals the applicant as a predator who has shown no remorse. The non-parole period reflects the difficulties of long term prediction,[24] but at present the applicant’s prospects of reformation are low.
[24]See also R. v. Barnes [2003] VSCA 156 at [22].
The question remains whether 28 years’ imprisonment is within the range that fairly represents the total criminality involved in all the offending beginning with the 1991 sentence[25]. The learned judge did not overlook that consideration and referred to the leading authorities, including Mill v. R.[26] and Postiglione v. R.[27]. It is therefore with considerable hesitation that I differ from his Honour. I have no sympathy with the applicant, but the law requires him to be presumed innocent of the numerous offences with which he has been charged and of which, for one reason or another, he has not been convicted. Confining attention to the offences of which he has been convicted, I am persuaded that 28 years’ imprisonment is outside the range. I would substitute directions for cumulation and concurrency that result in a total effective sentence of 25 years’ imprisonment for all the relevant offending.
[25]Compare R. v. Glennon [No. 2] at 692 fn. 127.
[26](1988) 166 C.L.R. 59.
[27](1997) 189 C.L.R. 295.
As I have indicated in the fifth point in [43] above, there is no reason to increase the five year gap between the head sentence and the non-parole period. On the contrary, bearing in mind the reduction in the head sentence, I would reduce it.
Orders
I propose orders in accordance with the following minutes:
1.Grant leave to add the proposed grounds 11, 13, 14 and 15 in relation to the first trial but refuse leave to add the proposed grounds 10 and 12.
2.Grant leave to appeal against the convictions sustained by the applicant on presentment C0001839 and treat the appeal as instituted and heard instanter.
3.Allow the appeal, quash the convictions sustained by the applicant on that presentment, set aside the sentences passed thereon and direct a new trial to be had.
4.Grant leave to add the proposed ground 24 in relation to the second trial but refuse leave to add the proposed grounds 21, 22 and 25.
5.Refuse leave to appeal against the convictions sustained by the applicant on presentment C00041839.1.
6.Grant leave to appeal against sentence and treat the appeal as instituted and heard instanter.
7.Allow the appeal in part.
8.Affirm the sentences passed on presentment C00041839.1 but set aside the directions for cumulation in relation to those sentences and, in lieu thereof, direct that two-and-a-half years of the sentence imposed on count 11, six months of the sentence imposed on count 13, two-and-a-half years of the sentence imposed on count 16 and six months of the sentence imposed on count 23 be served cumulatively upon each other and upon the sentence imposed on count 4, but that otherwise all the sentences passed on that presentment be served concurrently, making a total effective sentence on that presentment of 13 years’ imprisonment.
9.Set aside the directions for cumulation in relation to the sentence
the applicant was serving and, in lieu thereof, direct that the sentence of 13 years' imprisonment be served concurrently with the balance of the sentence the applicant was serving on 22nd October 2003 except for 18 months of the balance of that sentence, upon which the sentence of 13 years’ imprisonment is to be served cumulatively, resulting in a total further term of imprisonment of 14½ years commencing on that date.
10.Fix a new single non-parole period of 10½ years commencing on 22nd October 2003.
BUCHANAN, J.A.:
I agree with Callaway, J.A., for the reasons he has stated, that the application for leave to appeal against the convictions on presentment C0001839 should be granted, the appeal allowed, the convictions set aside and the applicant retried, that the application for leave to appeal against the convictions on presentment C00041839.1 be refused, that the application for leave to appeal against sentence be granted, the appeal allowed in part and the applicant resentenced as his Honour proposes.
EAMES, J.A.:
In R v DCC[28] Callaway, J.A. held that a propensity direction should ordinarily be given when evidence of uncharged sexual acts is led in a trial to establish the relationship between the alleged offender and the victim, but as his Honour explains in his reasons, which I have read in draft, the evidence of uncharged acts in the trial under Presentment C0001839 was not led for that purpose. Rather, the evidence was led to give an intelligible context to the counts on the presentment[29]. Had the evidence not been led then the jury would have been presented with an artificial account of the circumstances in which the complainant JC said the offences occurred, and it is likely that the complainant’s evidence would thereby have been unfairly diminished. The failure of defence counsel to request a propensity direction, when the judge rehearsed with counsel the directions he proposed to give to the jury, strongly suggests that counsel perceived no danger of injustice by its absence.
[28](2004) 151 A.Crim.R 403, at 405 [2].
[29]See R v Loguancio (2000) 1 V.R. 235, at 240 [13]
Given the circumstances in which the offences were said to have occurred, in particular the confined period over which both the charged and uncharged acts were said to have taken place, I consider that the risk of the jury employing propensity reasoning, concerning the uncharged acts, in deciding their verdicts was much reduced, indeed was negligible in this case. Had it not been for the other factors in the case which Callaway, J.A. has highlighted, I would not have regarded the absence of a propensity direction as having given rise to a perceptible risk of a miscarriage of justice[30]. Unfortunately, in what was otherwise a very well conducted trial those other factors, in particular the unfortunate choice of language employed in the direction concerning the applicant’s 1984 acquittal, combined with the absence of a propensity direction to produce that risk. For these reasons, and for the reasons stated by Callaway, J.A., I agree that the application for leave to appeal against conviction in the trial under presentment C0001839 should be granted, the convictions be set aside and a new trial be ordered.
[30]See BRS v The Queen (1997) 191 C.L.R. 275, at 301, per Gaudron, J.; R v Miletic [1997] 1 V.R. 593, at 606.
For the reasons given by Callaway, J.A. I agree that the application for leave to appeal against the convictions on presentment C00041839.1 should be refused. I agree, too, that the application for leave to appeal against sentence should be allowed in part, and the appellant be re-sentenced as proposed by his Honour. I also agree with his Honour’s proposed orders with respect to both trials concerning the applications to amend the grounds of appeal.
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CERTIFICATE
I certify that the preceding 22 pages are a true copy of the reasons for judgment of Callaway, Buchanan and Eames, JJ.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 17 November 2005.
DATED the day of 2005.
Associate
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