R v K R M
[1999] VSCA 91
•9 June 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No.169 of 1998
| THE QUEEN |
| v |
| K.R.M. |
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JUDGES: | PHILLIPS, BATT and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 23 and 24 March, 1999 | |
DATE OF JUDGMENT: | 9 June, 1999 | |
MEDIA NEUTRAL CITATION: | [1999] VSCA 91 | |
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Criminal Law – Conviction – Sexual assaults on step-daughter – Maintaining a sexual relationship with a child under 16 years – Elements of offence – Requirement that jury agree on commission of same illegal acts – No error – Propensity direction – Not required solely by presence of ‘relationship’ count – Evidence – Tape recording – Whether admissible – Cross examination as to prior sexual activity.
Crimes Act 1958 s.47A
KBT v. The Queen (1997) 191 C.L.R. 417 considered.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. C.J. Ryan | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. P.F. Tehan, Q.C., with Mr. C. Boyce | Allan McMonnies |
PHILLIPS, J. A.:
I agree with Buchanan, J.A.
BATT, J. A.:
I also agree with Buchanan, J.A.
BUCHANAN, J.A.:
On 18 May 1998 the applicant was arraigned in the County Court and pleaded not guilty to a presentment containing two counts of sexual penetration of a child under the age of 10 years, two counts of indecent assault, one count of gross indecency, 12 counts of incest and one count of maintaining a sexual relationship with a child under the age of 16 years. All the offences were alleged to have been committed against the applicant's step-daughter.
On 25 May 1998 the jury found the applicant guilty of all counts. He was sentenced to a term of imprisonment on each count, which, with some cumulation, amounted to a total effective sentence of eight years’ imprisonment. A non-parole period of six years was fixed. The applicant seeks leave to appeal against conviction.
For the purposes of this appeal it is not necessary to describe the circumstances of the offences in detail. The applicant married the complainant's mother when the complainant was two years old. She called him "Dad". When the complainant was eight years old and the family was living on a farm near Traralgon the applicant penetrated the complainant's mouth and vagina with his penis. The complainant told her mother about those events. Her mother confronted the applicant. The applicant denied that he had sexually abused the complainant, and nothing more was done about the complaint. The indecent assaults, which comprised rubbing the complainant's vagina, placing a finger in her vagina, and fondling her breasts, and an act of incest, occurred when the complainant was about ten years old after the family moved to Traralgon. The remaining counts took place when the applicant was aged between 13 and 15 years.
Throughout the period of the offences the applicant lived with the complainant, his wife and two sons. In October 1992, some months after the commission of the last offence, the applicant confessed to his wife that he had been sexually molesting the complainant. The applicant took an overdose of tablets and spent a night in hospital. About five months later the applicant left home, never to return. In 1995 the complainant's mother arranged for the complainant to make a statement to the police about the applicant's conduct.
A substantial part of the applicant's case on appeal was concerned with the charge under s.47A of the Crimes Act 1958 of maintaining a sexual relationship with a child under the age of 16 years. At the time when the charge was filed (see s.587(5) of the Crimes Act) the section, which is in Subdivision (8C) of Division 1 of Part 1 of the Act, provided, so far as is presently relevant:
"(1)A person who maintains a sexual relationship with a child under the age of 16 to whom he or she is not married and who is under his or her care, supervision or authority is guilty of an indictable offence.
(2)To prove an offence under sub-section (1) it is necessary to prove -
(a)that the accused during a particular period (while the child was under the age of 16 and under his or her care, supervision or authority) did an act in relation to the child which would constitute an offence under a particular provision of this Subdivision or Subdivision (8A) or (8B); and
(b)that such an act also took place between the accused and the child on at least two other occasions during that period.
(3)It is not necessary to prove the dates or the exact circumstances of the alleged occasions."
The Parliamentary debates disclose that the section was introduced as a reaction to S. v. The Queen (1989) 168 C.L.R. 266. In that case the appellant was charged with three counts of carnal knowledge each on unknown dates in separate periods of 12 months. The complainant gave evidence of two specific acts of intercourse, but there was no evidence to link either with any one of the specified periods. The complainant also gave evidence of numerous further acts over a period of two years. She could not recall any details. She could only say it occurred "every couple of months". The Court held that in the absence of any act being identified as the subject of a count, the Crown could not lead evidence which was equally capable of referring to a number of occasions, any one of which might constitute an offence, and invite the jury to convict on any one of them.
Count 18, the count under s.47A, alleged that during the period of six months before the complainant reached the age of 15 years the applicant introduced his penis into the vagina of the complainant on at least three occasions. The evidence relating to the charge was brief. In examination-in-chief the complainant was asked whether in the period of six months prior to her attaining the age of 15 years anything else occurred "other than what you've told us about in relation to sexual activities with [the applicant]?" She replied:
"There's no specifics that I can remember. Everything - a lot of them were - I cannot remember anything that separates a lot of them from the rest because it was very repetitious .... Just the manner of him always inserting his penis inside me and having - continually having sex with me; inserting his fingers. It was very routine and very frequent."
The complainant said that she was talking about sexual intercourse and digital penetration. After an overnight adjournment, the following exchange concluded the complainant's evidence in chief:
"[Complainant], towards the end of your evidence yesterday you were telling the jury that in the last six months before all sexual activity ceased there were occasions where sexual penetration and digital penetration took place and I think your words were 'on numerous occasions' or 'it was repetitious'?---Yes.
Do we take it from that, that it occurred on more than three occasions - - -?---Yes.
- - - during that period?---Yes.
And does that relate to the sexual penetration"---Yes.
The penile penetration?---Yes."
In order to find the applicant guilty of the count laid under s.47A it was necessary for the jury to find unanimously that the same three acts constituting offences of a sexual nature under a particular provision of the Act had been committed by the applicant, for the actus reus of the offence is not a course of conduct or the maintenance of a relationship but the doing "... of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions ... [and thus] a person cannot be convicted ... unless a jury is agreed as to the commission of the same three or more illegal acts": KBT v. The Queen (1997) 191 C.L.R. 417, at 422 per Brennan, C.J., Toohey, Gaudron and Gummow, JJ.
In KBT v. The Queen, which concerned a charge brought under s. 229B of the Criminal Code (the Queensland equivalent of s.47A), the complainant described conduct that fell into six broad categories, that is, offences which took place with six different groups of surrounding circumstances. Thus one category consisted of incidents which occurred while the complainant was riding a farm motorcycle with the appellant as her pillion passenger. The appellant stroked the complainant's breasts and pubic area, putting his hand inside her pants. Another category consisted of acts which occurred while the complainant was sitting on the appellant's lap watching television. The appellant would stroke the complainant's breasts and pubic area under her clothing, sometimes penetrating her vagina with his finger. In the absence of a direction from the trial judge that the jury were required to be satisfied as to the commission of the same three acts, different members of the jury might have been satisfied of the commission of offences in different categories so there was no unanimity as to three particular offences. It was in that context that the majority of the court added, at p.423:
"Moreover, if the prosecution evidence in support of a charge under s.229B(1) is simply evidence of the general course of sexual misconduct or of a general pattern of sexual misbehaviour, it is difficult to see that a jury could ever be satisfied as to the commission of the same three sexual acts as required by s.229B(1A)."
The present case is altogether different. The evidence is not "simply" evidence of some general course of sexual misconduct or general pattern of sexual misbehaviour. In concluding her examination-in-chief, the complainant confirmed expressly that the sexual intercourse of which she had earlier spoken consisted of penile penetration and occurred "on more than three occasions". The jury either accepted this or rejected it. There was no specification of dates or other attendant circumstances and the acts of penile penetration, being acts of sexual intercourse, were not distinguished one from the other. The jury could make no choice between one act and another, for their quality was identical. If the jury accepted the complainant's evidence, they must have been satisfied that there were at least three acts of sexual intercourse and that they were all of the same kind because there were no different categories of conduct or groups of surrounding circumstances.
Counsel for the applicant contended that the complainant's evidence was consistent with penetration of her vagina, anus and mouth, and different members of the jury might have been satisfied of the commission of different types of penetration. But this was not so. The count charged the applicant with the introduction of his penis into the vagina of the complainant. The judge directed the jury that the applicant's guilt depended upon each of them being satisfied of the element of penile penetration of the complainant's vagina. He said as to count 18:
"The next element that the Crown must prove beyond reasonable doubt is this; that during the time span alleged, [the applicant] took part in an act of sexual penetration with [the complainant], in that he introduced, in the sense of put his penis, in the girl's vagina, on at least three occasions during the timespan alleged."
After rehearsing the evidence on count 18 and directing the jury's attention to the Crown's alleging penile penetration "and not any digital penetration over that period of time", his Honour (in a passage which I shall shortly quote more fully) referred the jury to the need for them to be satisfied -
"... beyond reasonable doubt that on three or more unspecified occasions between the timespan alleged, at three or more unspecified places, an act of sexual penetration constituted by the accused putting his penis in the girl's vagina occurred."
He described this aspect again, saying -
"Proof of three such acts of penile penetration - and you must all be satisfied that at least three such acts of sexual penetration occurred in the timespan alleged ..."
The judge, having directed the jury in this fashion that they must agree on at least three acts of sexual penetration, was not required in the particular circumstances to direct the jury further as to the commission of the same three acts.
Accordingly, in my opinion the complaint that "the trial judge erred in failing to direct the jury that each of them had to be satisfied that the three acts of sexual penetration constituting the offence were (for each juror) the same three acts of sexual penetration" has not been established.
I would, however, add another comment about this aspect of the charge. In quoting from the judge's charge in paragraph 12, I omitted the judge's references to the need for more than simply proof of at least three acts of sexual penetration; for the jury were told that to convict the applicant on count 18 there must also be proof of the existence of a relationship. To quote more completely from the charge, the judge said this: -
"Even if you were satisfied beyond reasonable doubt that on three or more unspecified occasions between the timespan alleged, at three or more unspecified places, an act of sexual penetration constituted by the accused putting his penis in the girl's vagina occurred, that in itself is not enough to prove the offence. Proof of three such acts of penile penetration - and you must all be satisfied that at least three such acts of sexual penetration occurred in the timespan alleged - but additional elements have to be proved beyond reasonable doubt, before you could convict a person, [and the applicant was named], of these incidents, of maintaining a sexual relationship. ...
What is alleged here is an offence of a continuing nature, not one that is committed at a specific place, at a specific time on a specific day. Therefore what has to be proved by the Crown is a course of conduct over the relevant period.
The first additional matter which must be proved beyond reasonable doubt is in the circumstances proved, and on the evidence you accept, [the applicant] can be said to have maintained a relationship with her during the timespan alleged in count 18, that is, what you are satisfied he did, amounts to maintaining a relationship. Now, 'relationship' is a position where one person holds with respect to another, on account of some social or other connection between them, and 'maintain' is to cause to continue, to carry on, or keep up. The Crown must therefore prove an offence of an ongoing nature, and it is a course of conduct.
Then the Crown of course has to establish beyond reasonable doubt that the relationship was a sexual relationship, that is a relationship that is characterised by or given a sexual character by the commission of unlawful sexual acts, namely in this case by the accused taking part in an act of sexual penetration by putting his penis in [the complainant's] vagina on at least three separate occasions during the timespan alleged by count 18 ...
The Crown must also go on and prove that throughout the time span alleged [the applicant] had a particular state of mind, namely that he intended that the unlawful sexual behaviour, which gives the relationship its sexual character, would be ongoing, that is would continue as a course of conduct. ..." [Emphasis added.]
This seems to me to conflict with what the High Court said in KBT v. The Queen. In that case, Brennan, C.J., Toohey, Gaudron and Gummow, JJ. said, at 422, of s.229B(1A), which was in similar terms to s.47A(2): "[T]he actus reus of the offence is as specified in sub-s.(1A) rather than maintaining an unlawful sexual relationship." The same is true of s.47A, in my view, and so the judge's direction as to the Crown's need to prove the element of maintaining a sexual relationship (over and above proving at least three acts of penile penetration of the vagina) was inappropriate and unnecessary, though plainly favourable to the applicant.
It was put as a ground of appeal that the trial judge erred "by directing the jury that it was sufficient proof of the offence that there be ongoing unlawful sexual behaviour." Yet that is scarcely a fair reading of the charge. As is apparent from the passages already quoted in paragraphs 12 and 14, far from directing the jury that proof of ongoing unlawful sexual behaviour was sufficient to convict the applicant under s.47A, his Honour directed the jury that such proof was required in addition to proof of the commission of at least three sexual offences.
The applicant also contended that in order to establish the commission of an offence under s.47A the prosecution was required to prove at least three individual offences in a manner that would support at least three individual counts. It was submitted that the evidence could not satisfy that requirement, and accordingly the count should not have been left to the jury. An alternative ground of appeal was that the trial judge erred "by failing to direct the jury that they would have to be satisfied that three identifiable acts of sexual penetration had occurred."
Section 47A creates an offence which may offend the sensibilities of an experienced criminal lawyer. Lack of particularity in a presentment and in proof can result in unfairness, for it largely deprives the defence of the ability to test the complainant's evidence against a context of surrounding circumstances, and, as Kirby, J. pointed out in KBT v. The Queen, at 432, it may "result in a trial involving little more than accusation and denial". If an accused is reduced to a general denial in pleading his defence, he is precluded from raising more specific and effective defences, such as the defence of alibi. See S. v. The Queen, above at 275, per Dawson, J. Nevertheless, in my opinion that is a necessary result of the provisions of s.47A. Section 47A(3) expressly dispenses with proof of the matters that enable particular occasions on which offences have been committed to be identified. In particular, and notwithstanding counsel's submission to the contrary, it was not necessary in this case for the jury to identify the occasion of each of the three acts relied upon by the Crown. Nor was it necessary for the trial judge to direct the jury that they had to discern three identifiable acts of sexual penetration. Compare S. v. The Queen, above, and Johnson v. Miller (1937) 59 C.L.R. 467. Otherwise it is difficult to perceive any purpose served by the enactment of the section.
A related ground of appeal was that the trial judge erred in failing "to give the jury a propensity evidence direction in relation to counts 1 to 17 in the context of the evidence led in relation to count 18." The applicant contended that the trial judge should have directed the jury not to reason that because the applicant engaged in the sexual conduct the subject matter of count 18, he was the kind of person who was likely to have committed the crime the subject matter of other counts.
The trial judge directed the jury that they were to consider each count separately and were not to reason from guilt of one count to guilt on another count. He said:
"There are, as you well know, 18 different charges, or counts as they are technically called, against the accused, both on the - all on the one presentment as the formal document which is headed 'Particulars of Offence', and you have a copy of it - they are all on that one document called the presentment, and that is done for convenience, as it would obviously be highly inconvenient and absurdly expensive to hold a separate trial before a separate judge and jury on each of these counts.
However, you must not allow convenience to usurp justice. The accused man, [the applicant], is entitled, as is the Crown, to a separate consideration by you of each of the crimes charged. It may be that the same logic applies to some of them or all of them, but it would be quite wrong to say that simply because you found the accused man guilty or not guilty on one count, he must be guilty or not guilty as the case may be, of another.
Each count must be considered by you separately, in the light of the evidence that applies to it. You must ask yourselves as to each count separately, 'Am I satisfied beyond reasonable doubt by the evidence, that the accused is guilty of this crime?' If the answer to that question is, 'Yes', then you would find him guilty; if it is 'No', then of course you would find him not guilty."
A propensity warning is not required simply because there are two or more counts on the one presentment charging similar crimes against the same victim. A warning is only required if some other factor is present which calls for the warning. See R. v. J.(No. 2) [1998] 3 V.R. 602, at 638-43 per Callaway, J.A. Examples of such factors are the admission of evidence of misconduct which is not the subject of a count (R. v. Dolan (1992) 58 S.A.S.R. 501; R. v. Beserick (1993) 30 N.S.W.L.R. 510; Pfennig v. The Queen (1995) 182 C.L.R. 461, at 464-5; R. v. Vonarx, unreported, Court of Appeal, 15 November 1995; R. v. Grech [1997] 2 V.R. 609; Gipp v. The Queen (1998) 72 A.L.J.R. 1012) and the simultaneous trial of sexual offences committed against different victims (R. v. T. (1996) 86 A.Crim.R. 293). The question raised by this ground of appeal is whether the nature of the evidence led to establish count 18 was a factor which required the giving of a propensity warning.
The offences constituting count 18 were committed during the period of six months which ended on 18 March 1992, the 15th anniversary of the birth of the complainant. Other more specific counts of sexual misconduct, including incest, were alleged to have occurred at one time or another during the year to 18 March 1992. It was clear from the complainant's evidence that the acts the subject matter of the incest counts were not the offences on which count 18, the s.47A count, was based. The evidence in respect of the incest counts concerned events identifiable by a precise specification of the places and the circumstances surrounding the offences. No offences were alleged to have been committed after 18 March 1992.
The inclusion of a s.47A count might in a particular case require the giving of a propensity warning because the evidence led to support it is so general that it does "no more than establish a particular kind of propensity" (S. v. The Queen, above, at 276 per Dawson, J.). The evidence in S. v. The Queen might be thought to have been of that kind. The possible dangers of coupling a count under s.47A with other sexual offences specified with particularity were described by Kirby, J. in KBT v. The Queen, above, at 432.
However, in the present case I do not consider a propensity warning was required. Each of the counts and the evidence in support of it occupied its own identifiable ground. The evidence in support of count 18 came at the end of the complainant's evidence, and was readily distinguishable from the evidence relating to the other counts. The jury were directed in clear terms that each count and the evidence relating to it was to be considered separately and the jury were not to find the applicant guilty of one count because he was guilty of another count. As the evidence relating to each of the counts fell into distinct compartments, and was so dealt with by the trial judge in his charge, I am of the opinion that the direction given with respect to the separate consideration of each count was sufficient to prevent the jury reasoning that because the applicant was guilty of count 18, he was the kind of person who was likely to have committed the offence charged in another count. It would appear that the applicant's counsel at trial did not apprehend that the jury might misuse the evidence relating to count 18 for he made no complaint about the lack of a propensity warning. The evidence relating to count 18 lacked particularity, but it did not answer the description given to it by the applicant's counsel of "generalized evidence". It was evidence of individual acts which were clearly distinct from the acts founding other counts.
Other grounds of appeal concerned the trial judge's refusal to allow a copy tape-recording to be put to the complainant in cross-examination.
The complainant said in her examination-in-chief that in October 1992 the applicant
"claimed that he had a tape of me having sex or talking to someone - I don't know. He said that someone had secretly delivered it, anonymously delivered it, to the house and got into his hands ... He said he was going to show - play it to my Mum if ... [I did not] continue having sex with him."
The complainant said that she did not see or hear the tape. In the course of her cross-examination the complainant denied that she had used the technique of threatening others when things were going badly for her and denied that a 32 year-old named Gary had told her she was more than welcome to "crash" at his place at any time. Counsel for the applicant then sought to put to the complainant a tape-recording which counsel said contained statements by the complainant, which were inconsistent with her denials made in cross-examination. Counsel for the Crown objected to this course. During the discussion that followed it emerged that counsel for the applicant was relying upon an unauthenticated copy of the tape-recording. The trial judge said that he was against the application "until you can prove the timing of the tape, can produce the original tape ...".
After the close of the Crown case the applicant's counsel sought and was refused a ruling that he might lead evidence from the applicant of what he heard the complainant say on the tape-recording to prove prior inconsistent statements by the complainant. To the claim by counsel that he was seeking to call evidence simply of prior inconsistent statements going to credit, the judge said:
"Prior inconsistent statements do [go to credit], but here you've got a tape of unknown origin, unknown source, uncertain source, uncertain origin, illegally obtained, in all probability, and my answer remains no."
On this aspect of the application counsel for the applicant rested his case on the submission that the tape-recording was admissible and had been wrongly rejected at trial. It is not clear to me, on reading the transcript, that that is how it was put below. Be that as it may, that is how it was put to us and counsel conceded, in the course of argument, that the grounds of appeal relating to the tape-recording failed if the trial judge was correct in holding that the tape-recording had not been proved to be a recording of a conversation in which the complainant participated. In my opinion his Honour was clearly correct in so holding. Prior to the first ruling no evidence at all had been given in this trial to establish the provenance of the tape. That remained the position at the time the second ruling was made. Thereafter there was some evidence adduced from the applicant in cross-examination as to his making the original tape-recording adventitiously on an answering machine found at a rubbish tip and as to his making a copy. However, in my view that evidence fell short of establishing that an identified tape-recording contained a statement made by the complainant that was inconsistent with her evidence.
A document said by counsel to be a transcription of the tape-recording referred to in the evidence was supplied to this Court. Counsel for the Crown objected that the document had not been proved, and ultimately counsel for the applicant did not persist with his application that we should take it into account.
The final ground of appeal which was maintained was that the trial judge erred "in refusing leave to cross-examine the prosecutrix on her evidence that she had never seen another penis in her life."
The complainant said in the course of her cross-examination that she noticed first on the occasions of the offences committed when she was eight years old and then on the occasions of later offending that the applicant's penis was circumcised. The complainant was asked whether she noticed anything unusual about the applicant's genitalia. She answered:
"I'd never seen another penis in my life so I can't say that anything would have been different to me. I can't answer that. You are saying, 'Was there anything abnormal', well, I'd never seen a penis before, so whatever in front of me would have looked normal."
A medical practitioner who examined the applicant said he had an uncircumcised penis and only one testicle.
The applicant's counsel sought leave to cross-examine the complainant about other sexual activity of hers in order to contradict her claim that she'd "never seen another penis in my life". Counsel said that he wished to question the complainant about alleged sexual activities after her 15th birthday and in the course of which she had had the opportunity, it was asserted, to observe penises other than that of the applicant.
Section 37A of the Evidence Act 1958 provides in Rule (2)(a) that in any proceeding that relates to a charge for a sexual offence, the complainant shall not be cross-examined as to her sexual activities without the leave of the Court. Rule (3) provides, so far as is presently relevant, that the Court shall not grant leave unless it is satisfied that the evidence has substantial relevance to facts in issue or is proper matter for cross-examination as to credit. In the present case counsel for the applicant contended only that the evidence was proper matter for cross-examination as to credit. Rule (4)(b) provides:
"Evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities shall not be regarded -
...
(b)as being proper matter for cross-examination as to credit in the absence of special circumstances by reason of which it would be likely materially to impair confidence in the reliability of the evidence of the complainant."
In refusing the application the trial judge pointed out that the complainant said, "I'd never seen another penis in my life", that is, she was speaking of her knowledge at the times when she had seen the applicant's penis. His Honour characterized the proposed line of questioning as "equivocal" and said that he did not consider it desirable in the interests of justice to allow cross-examination as to credit on what was "a peripheral matter".
In my opinion the evidence sought to be elicited from the complainant of her experiences as a 15 year-old could not impugn her evidence of her knowledge before she attained the age of 15 years. The evidence did not relate to the complainant's credit in the sense of being inconsistent with her testimony or any prior statement she had made. The evidence could only have affected the complainant's credit if lack of chastity was a reflection upon her honesty. That is the very evidence which the section seeks to exclude.
While counsel for the applicant at the trial contended that the proposed cross-examination would reflect on the credit of the complainant by demonstrating the falsity of her statement that she had never seen another penis, counsel who appeared for the applicant on the hearing of this application submitted that the cross-examination would have shown that the complainant was lying when she said that she had seen the applicant's penis. It was said that if the complainant had seen other penises she would have known that the applicant's penis was not circumcised if he was offending as she claimed. Counsel for the applicant accepted that this was not how the matter had been put below. Suffice it then to say that the application was for an exercise of the judge's discretion under s.37A, and his Honour's ruling is not to be impugned by now advancing an attack upon the complainant's evidence that was not put to the trial judge and upon which he did not rule.
I would dismiss the application.
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