R v Khanna
[2005] VSCA 297
•14 December 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No. 178 of 2004 |
| v. | |
| AJAN KHANNA |
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JUDGES: | ORMISTON and VINCENT, JJ.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 March 2005 | |
DATE OF JUDGMENT: | 14 December 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 297 | |
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Criminal law – application for leave to appeal against convictions – committing an indecent act with a child under 16 years – jury trial – ground that verdict unreasonable and cannot be supported having regard to the evidence – considerations applicable – application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, QC, DPP with Ms C.M. Quin | Mr S. Carisbrooke |
| For the Applicant | Mr A.J. Bellanto, QC | Mr W.S. Whitby Solicitor (Sydney) |
ORMISTON, J.A.:
If one were merely to read the comprehensive account of the applicant’s trial set out in the judgment of Cummins, A.J.A., it might be easy to point to a number of inconsistencies in the evidence of the complainant, her mother and sister, and to conclude that the jury was unreasonable in having accepted the complainant’s account of the indecent assault which led to the applicant’s conviction. Inconsistencies and thus unreasonableness are, it may be conceded, not superficially difficult for appellate judges to perceive upon a reading of many a trial transcript but it does not follow that the verdict is unreasonable or should not be accepted or that there has otherwise been a miscarriage of justice, within the language of s.568(1) of the Crimes Act 1958.
Fortunately, in the ordinary case the task of resolving the extent to which inconsistencies and the like impinge on the reliability of a complainant’s version of events in criminal trials is left, not to judges, but to juries as the “constitutional” tribunal for determining guilt in such trials. What elderly appellate judges may perceive as weaknesses in a prosecution case may, and frequently does, not coincide with the combined views of twelve jury members, and for good reason. Although many, if not most, judges have great experience and accumulated wisdom, they cannot have ordinarily the breadth of experience collectively to be found in the members of a conventional jury drawn from all age groups and sections of the community.
The judge, on the other hand, has spent most of his or her life as a lawyer with the peculiar talents and approach to decision-making that that requires, which ordinarily involves a concentration upon detail. In particular, the average judge has ordinarily been blessed with a natural or trained memory beyond the ordinary, bringing with it an exceptional capacity to remember details of legal principle or of facts and circumstances or of both. So a trained common law or criminal barrister (in particular) will bring to the bench a capacity to recall details of things said and heard (or read elsewhere) which will ordinarily be well beyond that of the average jury member.
Consequently jury members will frequently take a more broad approach to the capacity of witnesses to recall details, especially inessential details. That does not mean that those details are unimportant or that juries will in certain circumstances see that they are in fact so important as to leave them unsatisfied as to the guilt of an accused, and so bring in a verdict of not guilty. If the twelve members of a jury (or a statutory majority), nevertheless, are all persuaded to the required degree that the inconsistencies in a complainant’s evidence are of no moment and that the accused is guilty of a relevant charge, then I believe judges should be loathe to overturn jury verdicts unless there has been some specific error or some aspect of the trial of a kind unfamiliar to juries but which nevertheless might render the jury’s verdict unsafe or unsatisfactory. Likewise if a jury perceives that a complainant’s forgetfulness of collateral details of events surrounding a sexual attack are insignificant, then, assuming that the jury has fairly had those matters drawn to its attention by counsel or judge, then one may properly prefer the jury’s assessment to a cold analysis of transcript by a small group of appellate judges. Of course, facts can be infinitely various and the power of an appellate court cannot properly be trammelled, so long as it gives fair recognition to the decision made by the jury.
Inconsistencies, therefore, of the kind here put forward are not necessarily a basis for overturning the jury’s verdict. Experience of over 40 years in the practice of the law, especially that gained as a trial judge over a period covering more than half my time on the bench, has taught me, at least, that it is very rare for witnesses to remember all details precisely, or at least as precisely as the trained mind of a barrister might remember those same facts. Moreover that same experience has showed that it was very rarely that all witnesses to a particular set of events could remember all the details in precisely the same way, especially the collateral or inessential details. Indeed it has been more a matter for suspicion when witnesses have told exactly the same story with clocklike recollection of important and unimportant details. All that flows from this, however, is that one may fairly
conclude that juries sensibly make allowances for human weaknesses in recollecting events, especially those circumstances which may be seen to be peripheral and of little direct consequence.
In circumstances such as are raised by the present application, what was important was that the jury saw that the critical witness, the complainant, describe with consistency the very events which made up the crime on which the applicant was convicted. They fairly assessed that her recollection was not sufficient to sustain a conviction on the primary count, not because she was untruthful (as they perceived it), but because the evidence was not sufficiently persuasive to sustain a conviction. Likewise they would have been prepared to make a proper allowance for the fact that the other witnesses were not themselves the subject of the attack and only one saw briefly circumstances which excited her suspicion. There is therefore no reason, in my opinion, to doubt that the jury properly assessed the whole of the evidence. It was a case in which the most competent of counsel was engaged who drew to their attention, as likewise has been drawn to this Court’s attention, the criticisms that could fairly be made, but the jury performed its function and, for the reasons also stated by Cummins, A.J.A, I do not think that this is a verdict which ought to be set aside.
I therefore agree with Cummins, A.J.A. that this application should be dismissed.
VINCENT, J.A.:
I agree that, for the reasons advanced by Cummins, A.J.A, the application for leave to appeal against conviction should be dismissed.
CUMMINS, A.J.A:
This is an application for leave to appeal against a conviction of committing
an indecent act on a child under the age of 16 years. The applicant was presented in the County Court upon the offence under section 45(1) Crimes Act 1958 of taking part in an act of sexual penetration with a child under the age of 16 years. After a five day jury trial he was acquitted of that charge and found guilty of committing an indecent act with a child under the age of 16, that being an alternative count under section 47(1) Crimes Act 1958. The applicant was convicted on that count and sentenced to 12 months’ imprisonment, such sentence being wholly suspended for a period of eighteen months. There is no application for leave to appeal against sentence.
The grounds of the application for leave to appeal against conviction are:
“Ground One:
The verdict is unreasonable and cannot be supported having regard to the evidence.
Ground Two:
The verdict of guilty on the alternate charge (s.47(1) Crimes Act 1958 (Vic)) is inconsistent with the verdict of acquittal on the first charge (s.45(1) Crimes Act (Vic)).”
The applicant was presented on a count that at Heidelberg West in 1998 (date specified) he
“took part in an act of sexual penetration with A., a child under the age of 16 in that he introduced his finger into the vagina of A.
On or about 21st day of April 1998 A. was under the age of 10.”
The events took place on 21 April 1998 in A.’s family home. The complainant was then aged 6 years. The applicant, Ajan Khanna, was aged 24. He was temporarily staying in the A. family home while he attended a conference of a spiritual education organisation which was holding an Australia/Oceania conference in Melbourne in 1998. The A. family were members of the organisation.
Living at the family home were the complainants’ parents and her two siblings, B. then aged 11 and C. then aged 9.
At trial the complainant gave evidence, as did her sister and mother, together with the informant. The applicant did not give evidence and no other witnesses were called by the defence.
As the first ground of the application is that the verdict is unreasonable and cannot be supported having regard to the evidence, it is necessary for this Court to review the evidence to determine whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence of which the applicant was found guilty[1].
[1]M. v. The Queen (1994) 181 C.L.R. 487; Jones v. The Queen (1997) 191 C.L.R. 439; MFA v. The Queen (2002) 213 C.L.R. 606.
The evidence led at trial was as follows.
The complainant, A., gave evidence that at the time of trial she was 13 years of age. When she was 7 she lived at her family home in West Heidelberg. She had an older sister, and a brother who was now 16. Her family were members of a spiritual organisation. The applicant was also a member of that organisation. One night when she was 6, the applicant came to stay. She was in her school uniform and was sitting cross-legged on the armrest of a couch in the lounge room writing in a lettering book. The applicant came over to her and put his right hand insider her underpants and inserted two fingers in her vagina and moved them around. This lasted about seven seconds. Her sister and brother were in the room on another couch. Her sister immediately took her out of the room. Later that night, the complainant told her mother that “Ajan was a feeler” and told her what had happened.
In cross-examination the complainant was shown a plan of the house she had drawn (marked Exhibit 1) and asked to clarify the position of the various rooms and items of furniture. A number of inconsistencies between the complainant’s evidence at trial (6 July 2004), her VATE interview (25 February 2002) and evidence at the committal hearing (10 July 2003) were put to her. They related to where her mother was in the house when the incident occurred, precisely in what positions her brother and sister were in the lounge room, the clothes she was wearing, the time of year the incident happened, what caused the applicant to desist and how the applicant was positioned on the couch. She agreed that the first time she had stated that her sister was doing her hair in the mirror was at the committal. She denied embellishing or exaggerating events or that the incidents had not happened.
In re-examination, the complainant said that by the word “feeler” she meant “somebody touching somebody else”. She was asked whether the applicant could have touched her by accident to which she replied, “No, you can’t do that on an accident”. She told her mother about the incident because she felt more comfortable speaking to her mother than her father, and she wanted the applicant out of the house. She said she may not have given accurate answers in the VATE interview because, in the interim, she had tried to forget about the incident and when describing the events to police she suddenly felt a lot of pressure to remember every detail. She said that her evidence about the applicant placing his fingers in her vagina was true.
B., the complainant’s sister gave evidence that she was born in 1986. She remembered the applicant staying at their place for two or three nights when the conference was on. She saw the applicant put his hand up her sister’s skirt. The witness was doing her own hair in front of a mirror and could see her sister behind her on the couch. The applicant was sitting on the couch. His hand went under the skirt up to his wrist. She was pretty sure the applicant was on her sister’s right side.
She said she turned around and told her sister to go with her. They went into their bedroom. She asked her sister about the incident. Her sister said the applicant touched her under the dress. She was aware that her sister had later told their mother. She thought the incident occurred in mid 1998.
In cross-examination it was put to her that at the committal hearing she said she did not see the applicant put his hand under the dress or take it away although she did briefly see the hand under the dress. She said she did see him put his hand there. She said her brother was lying down on the couch and she was standing up facing the mirror above the mantelpiece. She saw the applicant in the reflection. Her view of the applicant was partly restricted but she saw his hand move towards his sister under the dress and then stay. She assumed he was touching her sister’s private part. She said she was not mistaken about the hand going under the dress.
In re-examination she was asked to hold up a piece of paper to indicate the angle at which the mirror leaned on the wall. It was described by the prosecutor and trial judge as somewhere between 20-35 degrees. She said the applicant’s hand went under the front of her sister’s dress. When asked why she did not take her sister to her mother she stated that she thought “it could go away” and it was “embarrassing”.
A voluntary staff member of the organisation gave evidence of the date that the conference of the organisation was held in Melbourne in 1998. Those days were Friday to Sunday.
The complainant’s mother gave evidence that she had not met the applicant prior to the day he came to stay. She believed he had come down from Wollongong. He had met her husband and B. at previous camps of the organisation and had expressed interest in meeting the rest of the family. The applicant wrote to her husband asking to meet the family. She initially resisted the request but eventually agreed. The applicant arrived early evening, possibly a day or two before the conference and stayed for two or three days. He slept on the couch in the lounge room. Initially he had said he was coming down to Melbourne for business but later said that had fallen through. He asked to stay longer than the conference but she said he could not as she did not know him.
She spoke to her daughter A. concerning the incident with the applicant about a week after he left. A. came into her mother’s bedroom and asked her what a “feeler” was. A. was quite distressed speaking in a childlike voice, cuddling her doona and covering herself with it. A. was angry with her mother and not coherent. She encouraged A. to talk. A. said something like, “Where were you mummy? Where were you when he touched me?” She tried to clarify what A. meant. A. said, “Top and bottom area” and placed her hand down hear her groin in a vertical way. A. “ … just talked about that he wasn’t very nice. She talked about eyes that were different”. A. said it occurred, “When you weren’t there, you were out the back”.
In cross-examination the mother said that she thought the incident occurred during school holidays or Easter holidays. She knew it was in April. She remembered the children being at home with her during the day. At the time she was hanging up washing. A. told her about a week after the applicant left. The applicant left saying he had other arrangements in place. A. told her that B. had said not to tell their mother. She drew a plan of the lounge room furniture as she recalled it. The sketch plan was marked Exhibit 2.
Senior Constable Stubbles of the Wonthaggi Police Station but then a Senior Detective at Heidelberg CIU gave evidence that on 27 July 2002 he interviewed the applicant at the Mascot Police Station, Sydney. He conducted an audio and video recorded interview. The edited interview was played to the jury (Exhibit A). In the record of interview the applicant said he had visited Melbourne in 1998 primarily to attend a 3-day course with the organisation. He had arranged to stay with the family and a couple of other friends. When he stayed with the family he slept on the couch in the lounge room. He could not remember any occasion where A. was on the couch with a colouring book. He stated he could not recall ever being alone in the lounge room with A, B and C. He denied he ever put his hand up A’s dress. He said, “I feel like someone’s trying to launch an attack on me. I really don’t know why”. He agreed he was extremely affectionate towards the children, playing with them and cuddling them.
In cross-examination Senior Constable Stubbles stated that in the interview he put to the applicant that the complainant was sitting on the couch when she saw his hand go up A’s dress. There was no reference to B. standing at the mirror doing her hair. The VATE interview was conducted on 25 February 2002. Senior Constable Stubbles said that the applicant did not try to avoid being interviewed, and did not have any prior convictions.
The applicant did not give evidence and no other witnesses were called by the defence.
Mr Bellanto, in elegant and comprehensive submissions before us, reviewed in detail the evidence in particular of the complainant. Mr Bellanto had appeared for the applicant at trial. Before us Mr Bellanto submitted that there were inherent weaknesses in the complainant’s evidence, being internal inconsistencies, vagaries of memory and conflict with the evidence of her sister and mother. He submitted further that the complainant’s sister’s evidence also was internally inconsistent.
In reviewing the evidence Mr Bellanto submitted the following. The complainant in the VATE interview of 25 February 2002 stated that her mother was in the room and speaking to the appellant at the time of the offence; that both her brother and sister came over to her after the offence; that the appellant stopped interfering with her when her father came into the room and spoke to him; that she thought the offence occurred on a Sunday; and she could not remember what she was wearing but that she might have been wearing her red pyjamas. At trial (in July 2004) in evidence in chief she stated that she was sitting on the couch in the lounge room of her home and her brother and sister were sitting on the other couch; that she was sitting up on the armrest of the couch; that she was wearing her school dress; that the applicant came and sat next to her at which point he inserted two fingers in her vagina and wiggled them around for approximately seven seconds; that the applicant was sitting on her left hand side; that her sister then came and grabbed her and said “Come with me”; and that she felt no pain and there was no bleeding. In cross-examination at trial the complainant stated that her sister was doing her hair in the mirror at the time of the incident; that her father was not at home and was at work; that although she originally could not remember what she was wearing she later remembered that she was wearing her school dress; that this reminded her it must have been a week day and her father could not have been there; that at the committal she stated that she might have been wearing her tracksuit pants; that her mother may have been in the room at the time of the offence; and that she told her mother about the incident at night and her mother then “kicked the appellant out of the house”.
Mr Bellanto further submitted that there were inconsistencies between the complainant’s evidence and the evidence of her sister, B. At trial B. stated that she was standing near the mantelpiece doing her hair in the mirror and she saw what was happening in the reflection and was not sitting on the couch at the time.
Mr Bellanto submitted that in B’s evidence there were inconsistencies in that she stated that she saw the appellant put his hand up the complainant’s skirt, whereas as at the committal she said she did not see him put his hand up her dress or move it away. Further she said the applicant was sitting on the complainant’s right hand side, whereas the complainant said he was on her left.
Mr Bellanto further submitted that there were inconsistencies between the complainant’s evidence and the evidence given by her mother. At trial the mother gave evidence that the conference occurred over a Friday, Saturday and Sunday and that it may have been in the school holidays. She then said it was during the Easter holidays and the children were at home with her. She also gave evidence that the complainant came to talk to her about the incident about a week after the appellant had left; and that the complainant came into her bed and told her the appellant had touched her, indicating the breast and groin area. The mother stated that the complainant told her “you weren’t there”.
As to clothing, Mr Bellanto submitted that the complainant’s evidence changed each time she gave an account of events. In the VATE tape she stated that she was wearing her red pyjamas at the time of the offence. At committal she stated that she might have been wearing a tracksuit. At trial she stated that she was wearing her school uniform. Mr Bellanto submitted that those inconsistencies demonstrated the unreliability of her evidence and were also important as much of her evidence was dependant on what she was wearing at the time. It was her memory that she was wearing her school uniform that lead to her changing her evidence regarding the presence of her father in the home at the time of the offence. The evidence of the voluntary member and that of the complainant’s mother, established that the appellant was staying at the family home during the school holidays and as such the complainant would not have been wearing her school uniform. If the complainant was not wearing her uniform it suggested that it is likely she was wearing her pyjamas or a tracksuit as stated in her earlier evidence, which called into question her evidence and that of her sister. It further undermined her reliability. The complainant also gave evidence that she remembered going to school the day after the incident, which was also at odds with the evidence of both her mother and the voluntary member.
Mr Bellanto further submitted that the complainant’s evidence as to the presence of other family members also changed on each occasion that she recounted the events. In the VATE tape the complainant stated that her father was at home and that the appellant stopped interfering with her when her father came into the room and spoke to him. At trial she gave evidence that her father was not in the home at the time of the offence. In the VATE tape she said that her sister was sitting on the couch at the time of the offence looking at the appellant. At trial she stated that her sister was holding a mirror in her hand and doing her hair whilst sitting on the couch. Her sister gave evidence that she was not on the couch but standing up doing her hair in the mirror on the mantelpiece. In the VATE tape the complainant stated that after the offence both her brother and sister “looked at me strangely, and they jumped from that couch to my couch” to get her. At trial she gave evidence that it was only her sister, B., who came over to her after the offence and took her away from the room.
In order to consider Mr Bellanto’s submissions I have read in full the evidence led at trial[2].
[2]As to the care with which the evidence need be considered, see Chidiac v. The Queen (1991) 171 C.L.R. 432 at 444-445 per Mason CJ.
The two young witnesses were cross-examined in detail by Mr Bellanto. They gave evidence in 2004 of events which occurred in 1998 and as to which they had made police statements in 1998 and given evidence at committal in 2003. Given her age and the extent of time involved in the curial process it is to be expected that there would be a number of inconsistencies in the complainant’s evidence. Some of the data relied upon by Mr Bellanto at trial and before us were minutiae. The burden of the complainant’s evidence was internally consistent as to the count on which the applicant was convicted and generally consistent with the other evidence. In particular, the complainant’s sister gave evidence that she saw the applicant put his hand under the complainant’s dress, that she then took the complainant from the room, and that the complainant immediately told her that “he touched her under her dress but she didn’t tell me anything else”. As to inconsistency, the following passage occurred during cross-examination of the complainant (T 70):
“Now when you gave your evidence before the magistrate you changed some of the things that you’d told the police? --- Yes.
And you added something? --- Yes.
Is this the position, that the reason that you changed these things was because you had had a discussion with [B] and you realised that some of the things you were saying to the police didn’t fit in with what [B] was saying? --- No. I thought about it after I did the tape, I thought about it, and then I thought of how it actually happened, because I didn’t thought about it that much before the video tape.
Did your memory get better as the time passed or not? --- I thought about it a little bit after the tape and I kept on thinking about it, and then I realised that some of these things weren’t true and I don’t really understand why I said them.
Do you think you could’ve embellished, exaggerated, assumed things happened that didn’t happen? Do you think that could’ve happened? --- What do you mean?
Do you think you could’ve exaggerated, exaggerated the degree that you say you were interfered with? --- No.
Do you think you could’ve been influenced by what [B] said to you? --- No.”
The mental processes there revealed are entirely understandable. So too is the evidence of B. that she did not tell her mother or take her sister to their mother because she
“just thought it could go away, like – I don’t know, it’s embarrassing” (T 101).
Further, the mother said that when a week later A. came into the parental bedroom and told her the applicant had touched her, she was “stuttering”, “upset and babbling”, “covering herself” with the parents’ doona, and she was “frightened” (T 109). Further, the applicant, obviously a person of intelligence as his record of interview revealed (and who was called by Mr Bellanto on the plea) did not give evidence and thus the jury had no other sworn version of events. The jury was well placed to assess the truthfulness and reliability of the witnesses and in particular of the complainant. The jury was correctly and comprehensively instructed by the learned trial Judge. Bearing in mind the criteria stated in the authorities cited in paragraphs 15 and 38 above, I consider there was ample evidence upon which the jury lawfully could have convicted the applicant as it did.
In my view ground one fails.
In my view ground two also fails. The two verdicts are consistent. It was consistent for the jury not to be satisfied beyond reasonable doubt on the charged count, involving as it did penetration and as to which there was no corroborative evidence and no complaint, and be satisfied beyond reasonable doubt of the statutory alternative, as to which there was corroboration and complaint, being the evidence of the complainant’s sister above quoted. The sister was significantly older than the complainant. The acquittal on the charged count does not necessarily involve a finding of untruthfulness as to the complainant; but rather a lack of satisfaction to the requisite degree in all the circumstances.
I would dismiss the application for leave to appeal against conviction.
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