R v Mallia
[2009] VSCA 175
•4 August 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 773 of 2008
| THE QUEEN |
| v |
| JOSEPH MALLIA |
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JUDGES: | BUCHANAN and DODDS-STREETON JJA and LASRY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 August 2009 | |
DATE OF JUDGMENT: | 4 August 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 175 | |
JUDGMENT APPEALED FROM: | R v Joseph Mallia (Unreported County Court of Victoria Judge L Ross, 24 July 2008) | |
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Criminal law – Threat to inflict serious injury and indecent assault – Evidence of an offer to supply drugs and lacing a drink with amphetamine did not require the trial judge to give a propensity warning – The prosecutor properly relied upon the absence of any other explanation for the complainant’s conduct to support the complainant’s stated motive – Adequate directions given by the trial judge as to a choice between the accounts of the complainant and the accused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G T Cannon | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr T Kassimatis | Valos Black & Assocs |
BUCHANAN JA:
After a trial in the County Court, the jury returned verdicts of guilty on a count alleging that the applicant threatened to inflict serious injury and a count alleging indecent assault. The jury acquitted the applicant on a second count of indecent assault, and were unable to reach a verdict on one count of rape and one count of sexual penetration. The applicant seeks leave to appeal against the convictions.
The principal witness for the prosecution was the complainant, a girl aged 15 years. She said that she and two of her friends purchased cans of paint and used them to 'chrome', that is, to inhale the fumes given off by the paint. The girls then made their way to the city, affected by the fumes they had inhaled. In the city, the girls met the applicant, who was aged 48 years. According to the complainant, the applicant engaged in a conversation and offered to obtain drugs. The complainant said that she wished to take up the offer. She left the other two girls and accepted a lift in a car driven by the applicant, who took her to a flat in Preston. The complainant said that when they arrived at the flat the applicant gave her Coca Cola laced with amphetamine. The complainant said that after she drank the Coca Cola the applicant asked her to lie on the bed and made sexual overtures to her. She said that she resisted those advances and said that the applicant produced a knife and threatened her. The offence of indecent assault depended upon the complainant's evidence that the applicant forcibly removed the complainant's top while she was on the bed and thereupon sucked her breasts.
The complainant's companions made contact with her by mobile telephone. The complainant said that she was at a convenience store in Preston. The friends went to the store by taxi and described finding the complainant in a distressed condition.
The Crown led evidence that material taken from a swab of the complainant's breasts matched the DNA profile of the applicant. No evidence was called by the defence. In his record of interview by the police, the applicant said that he met three girls in the city; they asked him if he could get them speed, to which he replied 'No'. The applicant said that he bought one of the girls a bottle of Coca Cola and a packet of cigarettes and took her to his flat. The girl had 'ice' with her and she put it in water and drank it in the lounge room of the applicant's residence. The applicant said that he did not have sexual intercourse with the girl and that he did not touch her. He said: 'She had what she had to do, and she left. That was it.'
The first ground of the application for leave to appeal is that the trial miscarried because the trial judge failed to direct the jury adequately or at all as to the consequences of evidence that the applicant offered to buy drugs and laced a glass of water he gave to the complainant with amphetamine. Counsel for the applicant submitted that the evidence given by the complainant and her friends that the applicant offered to supply them with amphetamine and the evidence of the complainant that he administered Coca Cola to her which was laced with amphetamine required a direction by the trial judge to the jury that, if they accepted that evidence, they were not to reason from the fact that the applicant offered and supplied drugs that he was on that account the kind of person likely to have committed the offences with which he was charged.
In his address to the jury, the prosecutor relied upon the evidence of the promise of drugs to explain the complainant's presence in the applicant's flat. The trial judge told the jury in his charge:
Similarly, you have heard evidence in this case that is controversial: the suggestion that the accused man offered to get drugs. Drugs really are not an issue in this case, but it would be very wrong to attach any adverse significance to the accused man because there is some suggestion he is dealing in drugs. We are concerned with what occurred in the bedroom of that flat. That is the matter that you have got to focus upon and it is very important that you, I repeat, put any notions of bias, sympathy or prejudice out of your mind when you are considering the evidence.
Counsel for the applicant submitted that this direction was inadequate. The trial judge was required, so it was said, to give a full propensity warning, that is, to tell the jury that they were not to reason from the applicant's offer and provision of drugs that he was on that account the kind of person likely to be guilty of the offences with which he was charged.
In my opinion a propensity warning is not required on each occasion upon which evidence led by the Crown discloses conduct on the part of the accused which might be viewed as discreditable or as constituting an offence. Whether a propensity warning is required depends upon the nature of the conduct alleged against the accused, the part which that conduct played in the narrative advanced by the prosecution, and the nature of the offences with which the accused has been charged. In the present case, I do not think that the evidence of the offer and provision of drugs revealed any propensity on the part of the applicant to commit sexual or violent offences. In my opinion, there was no danger that the jury may have reasoned that a person who offered or supplied drugs was the type of person more likely to commit sexual offences against young women or threaten them with violence. It is hardly surprising that counsel for the applicant at trial did not seek a propensity warning.
The second ground of the application was based upon the fact that the prosecutor, in the course of his address to the jury, rhetorically asked: 'Why would the complainant leave her friends in the city and accompany the applicant to his home?' and stated to the jury that the applicant had advanced no reason for the complainant's leaving her friends and going off with the applicant. Counsel for the applicant submitted in this Court that the prosecutor's conduct invited the jury to draw an inference adverse to the applicant based upon a failure to provide an explanation, rather than on what the applicant told the police or his counsel suggested and carried a real risk that the onus of proof may have been reversed. The trial judge was required and failed, so it was said, to tell the jury that the applicant was not required to provide an explanation for the complainant's conduct. Counsel for the applicant relied upon authorities concerned with a witness being asked by a prosecutor whether another witness is telling lies or has invented something. Cross-examination of that kind is impermissible because it may deflect the jury from a proper assessment of the credibility of the Crown witnesses and of the accused in accordance with the burden and standard of proof borne by the Crown.[1]
[1]Palmer v The Queen (1998) 193 CLR 1, 7, 11-12 and 25.
The principal vice in asking a witness, and particularly the accused, why another witness would lie is the fact that the witness has no knowledge of any matter from which a motive to lie might be inferred is generally quite irrelevant and inappropriately focuses attention on an immaterial and manufactured conflict. To ask an accused why a witness would lie is to invite the jury to accept the evidence of the witness unless a positive answer to the question is given by the accused. The same result might ensue if the prosecutor asks the jury the same question rhetorically.
In my opinion, the authorities dealing with the problems created by challenging an accused to explain why a complainant should lie do not preclude a prosecutor pointing out the absence of any explanation for a witness's conduct other than the motive stated by the witness. The prosecutor in this case did no more than emphasise the consistency and credibility of the complainant's account by urging the jury to accept the reason advanced by the complainant. I do not think that the prosecutor's rhetorical question reversed the onus of proof or diverted the jury by raising an irrelevant issue. The prosecutor was presenting an argument which did address the probability of the complainant accompanying the applicant for the reason she stated.
The third ground of the application was that the jury may have thought that the real question in the case was making a choice between the account given by the complainant and the account given by the applicant. It was submitted that the trial judge did not give directions which ensured the jury did not find the applicant guilty because they did not prefer his account to that of the complainant.[2] Both the prosecutor and defence counsel in their addresses invited the jury to weigh the accounts advanced by the complainant and the applicant. The trial judge dealt squarely with the problem. He said in his charge:
The obligation is on the Crown to prove the case against the applicant beyond reasonable doubt. In the course of addresses, you might have heard that there is a balancing situation with respect to these two stories. Let me make it plain from the outset that you have heard an account of events given by the accused. The accused does not have to satisfy you that that account is correct. It is really the converse is correct. The Crown has to satisfy you. In a case where there is a denial, the Crown has to satisfy you beyond reasonable doubt that the denial is incorrect, so it is very important that you remember that.
[2]Liberato v The Queen (1985) 159 CLR 507.
The trial judge also explained the difference between criminal and civil standards of proof, and in so doing made clear that the jury was not concerned with probabilities. He said:
You sometimes hear of civil cases where what is being sought to be established is on the balance of probabilities. We are not speaking in terms of probabilities here. We are not speaking in terms of speculation. We are speaking in terms of the jury being satisfied beyond reasonable doubt of the elements that go to make up a particular charge.
Counsel for the applicant could hardly criticise these directions. Instead, he submitted that the directions were not sufficient to prevent a miscarriage of justice because they were given early in the charge. Later in the charge, his Honour summarised and thereby contrasted the complainant's evidence with the applicant's record of interview. Counsel for the applicant submitted that the summary of the evidence should have been accompanied by further directions which precluded the jury from thinking that their task was to choose between the parties' different accounts. I note that Liberato v The Queen dealt with an express invitation by a trial judge to the jury to consider whether prosecution or defence witnesses were to be believed. A Liberato direction is not required as a matter of law.[3]
[3]R v Chen (2002) 130 A Crim R 300, 328-9 (Heydon JA, Sully and Levine JJ); R v Burt (2003) 140 A Crim R 555, 564 (Wood CJ at CL); R v Youssef (No 2) [2006] VSCA 117 [11], (Chernov JA).
In the present case, I consider that the trial judge's emphatic and unmistakable warning against treating the case as one requiring only a choice between conflicting accounts was sufficient to avert the danger to which the dissenting judges in Liberato v The Queen referred. I do not consider that the direction lost any force because it was not repeated.
For the foregoing reasons, I would refuse leave to appeal against conviction.
DODDS-STREETON JA:
I agree with his Honour the presiding judge.
LASRY AJA:
I also agree.
BUCHANAN JA:
The order of the Court is that the application for leave to appeal against conviction is dismissed.
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