R v Jackson
[2004] VSCA 224
•30 November 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.133 of 2003
| THE QUEEN |
| v. |
| GREGORY KEITH JACKSON |
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JUDGES: | BATT, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 November 2004 | |
DATE OF JUDGMENT: | 30 November 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 224 | |
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Criminal Law - Committing an indecent act on a child - Questions by counsel for accused suggested delay in making complaint - Use of word "delay" unnecessary - Judge required to inform the jury that there may be good reason for delay pursuant to s.61(1)(b) of the Crimes Act 1958 - Verdict not unsafe or unsatisfactory.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston | Ms K. Robertson, Solicitor for Public Prosecutions |
For the Applicant | Mr N. Crafti | Dean Cole & Associates |
BATT, J.A.:
I will ask Buchanan, J.A. to give the first judgment.
BUCHANAN, J.A.:
On 4 March 2003 the applicant was arraigned and pleaded not guilty to a presentment containing two counts of committing an indecent act with a child under the age of 16 years and one count of committing an indecent act in the presence of a child under the age of 16 years. After a trial the jury returned a verdict of guilty on one of the counts of committing an indecent act and acquitted the applicant on the other counts. A plea was made on behalf of the applicant and he was sentenced to be imprisoned for a term of six months, but the sentence was wholly suspended for a period of three years.
The applicant now seeks leave to appeal against his conviction on the following grounds:
"1.That in all the circumstances of the case the conviction of the applicant is unsafe and unsatisfactory.
2.That the learned trial judge was in error in failing to discharge the jury as a result of the learned prosecutor asking the accused about his experience of young people complaining.
3.Alternatively to ground 2 herein, that the learned trial judge was in error in failing to discharge the jury when it enquired about the accused's experience of young children complaining.
4.That the learned trial judge was in error in giving the jury the directions of law which he gave concerning reasons which young children may have in delaying any complaint which they might have."
The offences were alleged to have occurred between 1 December 1992 and 15 February 1993 when the complainant was aged 7 years and the applicant was aged 32 years. The complainant's family and other families spent the Christmas holidays camping in the Fraser National Park at Eildon. The applicant was part of the group.
The indecent act the subject matter of count 1 was alleged to have occurred when the complainant's family, the applicant and a number of other adults and children were picnicking and water-skiing at a place called Woolshed. The complainant and a friend were digging in the sand on the bank of Lake Eildon. The complainant was wearing pink Hawaiian board shorts with a nylon cord at the waist. When the complainant joined his mother and a large group of other adults and children near the water he was playing with the cord on his shorts. His mother asked him what was wrong and he replied that there was a knot in it. The applicant, who was present, said, "Come here, mate, I'll fix it." The applicant sat down with his legs around the complainant, who was facing away from him, and put his arms around the complainant's body to fix the cord. The complainant and the applicant were one-and-a-half metres from the complainant's mother. The complainant's father and another adult were said by one witness to have observed the applicant, but were not called as witnesses. The complainant's mother said that she was not "overly concerned" at the incident, although there had been gossip, rumours and innuendo about the applicant.
The only direct evidence of the indecent act was that given by the complainant, who said:
"He started playing with the cord on my pants and the next thing I knew he had his hands down my pants … He just started touching me … He was in my shorts and underneath my jocks and I felt very uncomfortable … He was touching my penis … I made a comment and then Laura said something to the effect of, what are you doing and Greg said, it's okay, we're both boys. He doesn't mind."
The complainant said that the incident lasted for only a couple of minutes at the most and that it ended because "I just felt uncomfortable. I ended up getting up and walking away, as far as I remember."
The applicant gave evidence that he saw the complainant struggling to untie his shorts and called him over to try and fix them for him. The complainant sat in front of the applicant and the applicant tried to untie the knot. He was unable to do so, but another adult untied the knot.
With respect to ground 1 counsel for the applicant said that the circumstances of the complainant's age when the offence was alleged to have been committed, that no complaint was made for some nine years, and that the complainant's mother and another adult in the vicinity saw nothing untoward rendered the verdict unsafe and unsatisfactory.
In considering whether a verdict is unsafe or unsatisfactory an appellate court must have regard to the fact that the jury is entrusted with the primary responsibility of determining guilt or innocence. In that context proper weight is to be given to the fact that the jury has had the benefit of seeing and hearing the witness.[1] The actions of the applicant alleged by the complainant could have taken place notwithstanding the proximity of other adults and the complainant's evidence was not necessarily inconsistent with the evidence of the complainant's mother. The circumstances in which the offence was alleged to have occurred, and which were said by Mr Crafti in his able argument to have told against the probability that the applicant acted as the complainant described, were before the jury. In my opinion those circumstances did not require the jury to doubt the evidence of the complainant. The complainant gave clear evidence of the commission of an indecent act by the applicant, evidence which the jury could accept.
[1]M. v. R. (1994) 181 C.L.R. 487.
Grounds 2 and 3 arose from the following questions and answers in the course of the applicant's cross-examination by the prosecutor:
"Now we have heard, again, a colloquial expression, you've been described as the 'king of the kids' in this camp. Do you agree with that or do you see it differently?---No, I'd agree.
You would know a bit about kids and the way they behave, Mr Jackson, from your experience with them over the years, would you?---Yes.
And kids aren't slow about complaining about something that they are not happy about, are they, usually?---No.
And (the complainant) in particular, was he someone who would complain if he had a problem, would he talk about it?---He was like everyone else."
In the course of the charge to the jury the foreperson asked the trial judge to read that passage. At the conclusion of the charge counsel for the applicant applied for the discharge of the jury on the ground that the prosecutor's questions implied that the applicant had been the subject of other complaints. In this Court counsel for the applicant submitted that the jury appeared to have taken the prosecutor's question to mean that the applicant had experienced other complaints of this kind.
Shortly before the impugned questions and answers the prosecutor had asked the applicant whether it was the applicant's evidence that the complainant had been wearing the pants that were too tight for an hour-and-a-half before he complained about them. It was put to the applicant that his version was that the complainant needed help and his mother and father were present. In my opinion it is clear that the questions about complaints could only have been taken by the jury to have referred to possible complaint by the victim about the tightness of his shorts, not complaints about any past wrongdoing on the part of the applicant. In a redirection the trial judge made it clear that the context of the evidence about complaints was cross-examination about the tightness of the complainant's shorts. I do not think there was any danger that a miscarriage of justice was caused by the prosecutor's questions.
In the course of his charge the trial judge reminded the jury that there was no evidence of recent complaint. He said that delay in complaining did not necessarily indicate that the complainant's allegations were false, for there might be good reason for the delay in making complaint. His Honour referred to the age of the complainant and said that a child who is a victim of a sexual assault might well hesitate to complain about an adult.
This direction founded the complaint made in ground 4.
Section 61(1)(b) of the Crimes Act 1958 provides that on the trial of a person for an offence of, inter alia, committing an indecent act with a child under the age of 16 years -
"(b)If evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it."
Counsel for the applicant submitted that he made a deliberate forensic decision not to challenge the complainant about his delay in complaining or to comment on the matter in the course of his address. In my opinion, however, questions were asked which tended to suggest that there was a delay in making complaint.
The complainant's mother was asked questions about when the matter first came to light. It was put to her that the matter came to a head when she received a call from a man nearly ten years later. Questions asked of the complainant in cross-examination elicited evidence that the offence took place in the immediate proximity of his mother, father and another adult and that he "didn't say anything to anyone about any of these matters for about ten years" or "nine years". In my view the question of delay was clearly placed before the jury and enlivened the operation of s.61 of the Act. It was not necessary for counsel to use the word "delay" or a synonym for it or to ask the complainant why he had not complained earlier. Nor do I think that the fact that the questions were not designed to show delay prevented the operation of the section. The section operates when a question is asked which tends to suggest that there was delay in making complaint. The questions brought into the open the period of time between the applicant's conduct and complaint. Having regard to the length of the period, that was sufficient, in my view, to require the trial judge to direct the jury as he did.
For the foregoing reasons I am of the opinion that none of the grounds of the application have been established and I would refuse leave to appeal against conviction.
BATT, J.A.:
I agree.
VINCENT, J.A.:
I agree.
BATT, J.A.:
The order of the Court accordingly is that the application for leave to appeal against conviction is dismissed.
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