R v McKenzie
[2003] VSCA 147
•10 September 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 176 of 2001
| THE QUEEN |
| v. |
| RODNEY PETER McKENZIE |
---
JUDGES: | WINNEKE, P., VINCENT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 September 2003 | |
DATE OF JUDGMENT: | 10 September 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 147 | |
---
Criminal law – Two counts of rape of de facto spouse – Whether verdicts unsafe and unsatisfactory because remarks of prosecution and defence counsel rendered trial unfair – No application to discharge jury and no exception taken at trial – Application against conviction dismissed.
Sentence – Total effective sentence of six years’ imprisonment with minimum term of five years for rapes committed on parole, lenient for crimes of this gravity.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K.E. Judd | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr G. Connellan (appearing pro bono) |
WINNEKE, P.:
The applicant, Rodney Peter McKenzie, was convicted in the County Court at Melbourne on 22 March 2001 of two counts of rape. The applicant admitted 128 previous convictions from 26 court appearances between 1968 and 1999. The previous convictions are for multifarious offences but include crimes of violence and drug related crimes. On the day following conviction, the Crown filed a fresh presentment alleging one count of trafficking in methyl-amphetamine to which the applicant pleaded guilty.
On 25 May 2001, the date set for the plea and sentence, the applicant announced that he wished to change his plea on the drug trafficking count. The matter was further adjourned to 30 May 2001. On this latter date, the applicant appeared with new representation; announced that he no longer wished to change his plea – but wished instead to contest the facts upon which the Crown relied. The matter was further adjourned to 15 June 2001. On that date the judge heard submissions from applicant’s counsel; then on 25 June 2001 he sentenced the applicant as follows:
Rape (count 1 on the first presentment): 4 years' imprisonment;
Rape (count 2 on the first presentment): 3 years' imprisonment.
His Honour ordered that two years of the sentence on the second count of rape would run concurrently with the sentence on count 1.
Trafficking in a drug of dependence (the sole count on presentment 2):
His Honour imposed a sentence of imprisonment of 2 years, one year of which he ordered to run concurrently with the sentences imposed on the counts of rape on presentment 1. The total effective sentence was therefore 6 years' imprisonment. His Honour directed that the sentence be served concurrently with any period of imprisonment which the applicant may be ordered to serve upon cancellation of his parole. His Honour fixed a non-parole period of 5 years. The sentence imposed, and more particularly the non-parole period, was fixed bearing in mind the 2 years parole which the applicant “owed the Parole Board”, and to ensure that the overall period which the applicant should have to serve at this point in his life should not be crushing. His Honour declared 169 days as having already been served pursuant to the sentences which he had imposed.
On 6 July 2001 the applicant, by notice, has sought leave to appeal against his convictions and the sentences which have been imposed. The grounds of the conviction application were amended by leave of the Registrar on 20 March of this year. Before turning to the substituted ground, it is necessary to briefly describe the circumstances of the relevant offending.
Circumstances of the offending
At the time the offences to which I have referred took place the applicant was subject to a parole order made in respect of sentences which had been imposed on him in the County Court on 27 April 1999 for a variety of drug offences. He was released on parole in or about December 1999, following which he returned to live at the home of his de facto spouse (whom I shall call “the complainant”) at the house in Mooroolbark where she lived with her three male children. For some five years the applicant had lived with the complainant, but their relationship was, to say the least, somewhat spasmodic because of the times which the applicant had spent in gaol. When, on 10 December 1999, the applicant returned to the Mooroolbark house, arguments developed and the complainant repeatedly asked the applicant to leave. Some time before 30 March 2000 (the date of the first rape), the applicant commenced to live in the garage of the house. On 29 March, the applicant came into the house in the evening, abusive and angry towards the complainant, apparently contending that she could not find something on her computer which he had wanted her to find; that abuse continued until about three o’clock the following morning. The applicant then left, but returned at about 6.30 a.m. and continued to abuse the complainant. The complainant, who was about to visit her parents, went to the bathroom to have a shower. When she stepped out of the shower, the applicant was there. He grabbed the complainant’s underwear and ordered her on to her knees. When she complied, the applicant undid his jeans, took out his penis and ordered the complainant to “Suck it, the way you used to”. She did as she was bidden out of, so she said, fear of reprisal. He then thrust it backwards and forwards, causing her distress. Eventually he ejaculated, insisting that she swallow “every drop”. The complainant did not report this rape. Throughout the affair the complainant said that she was crying, retching and resisting.
The second rape occurred about a fortnight later, namely on 11 April 2000. The complainant had gone into the bathroom to wash her hands. The applicant followed. He was affected, so it was said, by consumption of amphetamine. He shut the door and, in anger, again told her to get down on her knees. He took out his penis and again told her to suck it. She tried, but said it was hurting. One of her children called out to her from outside the closed door; the applicant permitted her to answer. He then re-commenced to thrust; and accused her of “not doing it properly”. He then removed his penis from her mouth and started to squeeze her breasts. Then he commenced to unzip her jeans so that he could see how “wet” she was. He then re-inserted his penis into the complainant’s mouth. At this stage she remonstrated by biting his penis as hard as she could. He recoiled in pain, and she ran from the bathroom; dialled “OOO” and screamed for help. She collected her children, ran out of the house, over fences, and finally achieved the sanctuary of a neighbour’s home. She was visibly upset and, upon enquiry, said that she had been raped. She then called the police.
Ultimately the applicant was arrested. When interviewed he claimed that the oral sex was consensual and, at his trial, pleaded not guilty to the two rapes alleged. He sought, unsuccessfully, to make the point that this type of intercourse had been one which had commonly occurred consensually between them over the years. The result of the last time upon which it occurred carried consequences for the applicant. The doctor who examined him gave evidence of the severe bruising and lacerations which had been occasioned to his penis by the teeth of the complainant. The infliction of these wounds was, in the doctor’s opinion, calculated to cause what he called “moderately severe pain”. Following the applicant’s arrest, the police searched the garage and located paraphernalia associated with the manufacture and/or trafficking of amphetamines. In his record of interview with the police the applicant told them that these things belonged to the complainant. Shortly afterwards, the complainant demolished a cubicle which had been erected in the garage and, in doing so, disclosed a compartment in which further bags of amphetamine were stored together with material used for trafficking purposes.
Grounds of appeal against conviction
The amended ground of appeal against the “rape convictions” alleges that the jury’s verdicts were unsafe and unsatisfactory for a number of reasons. The particulars given assert, in brief, that:
(i)the prosecutor’s address to the jury was unfair because of “intemperate remarks” which were made;
(ii)defence counsel’s address also incorporated inappropriate comments which rendered the trial unfair;
(iii)the judge failed to give appropriate directions to “balance” the prosecutor’s remarks; and he also failed to discharge the jury following inappropriate remarks of defence counsel and prosecutor.
These grounds of appeal are taken against the background of a trial which was of short duration, and in which the only issues were whether the complainant was consenting and/or whether the applicant knew that she was not consenting or knew that she might not have been consenting but persisted in any event. In respect of these issues the complainant was cross-examined at length by trial counsel for the applicant, who – upon any view – was a counsel experienced in criminal trials. Furthermore, it was a case in which the applicant himself had given no evidence at all.
In support of the ground of appeal which was argued in this Court by Mr Connellan on behalf of the applicant, it was put that the issue of the complainant’s consent to the first alleged rape on 30 March 2000 was critical not only to proof of that offence but also to the alleged rape of 11 April. It was further submitted that this Court could infer that the jury was “in two minds” about that issue from the question which they asked during their deliberations as to whether the law regards rape as occurring if a person, who had originally consented, had withdrawn that consent. That question was answered in unexceptionable terms by the judge and no point is made of the directions on this appeal. Rather it is now contended that the fact that the jury asked the question demonstrated such a fine balance in their deliberations on the issue of “consent” that the intemperate behaviour of the prosecutor took on a significance which otherwise it might not have had to the fairness of the trial. That contention seems to me to be ingenious, but it is difficult to see how it could have caused any unfairness capable of being remedied during the trial. Its significance, if any, is one which could only appeal to this Court. The submission which has been advanced in this Court is that the prosecutor had “overstepped the mark” in his final address to the jury by unacceptably making submissions which sought to identify the case made by the applicant with the “persona” of his counsel. Thus, so it was said, the prosecutor had asked the jury rhetorically:
“Did you hear anything said to [the complainant] by [counsel for the defendant] – who gets his instructions from the accused man; did you hear anything put to her that she gave him ‘the look’ that meant he could then have his way with her orally.” [This was a reference to a statement made by the applicant in his record of interview with police].
The prosecutor went on:
“No, not one word was put, but that is what he says in his record of interview.”
Another example relied upon was:
“… She [the complainant] was then cross-examined as I said for some time by [defence counsel]. He’s a very, very experienced criminal barrister … but he did not get anywhere … She was cross-examined up hill and down dale, it descended to nitpicking on side issues, red herrings and mud-slinging.”
There were other references of like ilk. It was contended that the prosecutor had made inflammatory remarks by submitting that much of defence counsel’s questioning was calculated to deflect the jury’s attention from the real issues – so much so that the defence sought to be mounted in cross-examination was in truth “a Clayton’s defence” of “trying anything”. Furthermore, it was submitted, defence counsel had compounded the problem by certain inadequate remarks of his own, particularly those at the conclusion of his address. Mr Connellan quite fairly conceded that it was not so much a matter of any individual comment but the conglomeration of remarks by the prosecutor, which, as he put it, in essence proclaimed that the defence case was a waste of time. This was underlined, he submitted, by the rather facile remarks about the senior status of defence counsel. Counsel emphasised that the evidence demonstrated that there was, after the first alleged rape, no complaint and an apparent acceptance of the conduct by the complainant. In this context the prosecutor’s trivialisation of the applicant’s case, so it was submitted, became a powerful influence. Defence counsel, Mr Connellan submitted, had also “tripped at the last hurdle” when he said that he was “an actor” whose job it was, in effect, to tell a story. In response to these submissions, Ms Judd, who appeared for the respondent in this Court, submitted that the comments made by the prosecutor were within the limits of his role and were relevant to the issues in the case. No application of any sort, she correctly pointed out, was made by those engaged in the trial on the basis that any unfairness had occurred. So far as the comments of defence counsel were concerned, it was put by Ms Judd that his concluding remarks were nothing more than an exhortation to the jury that it was the evidence, and not his comments, which should be acted on by them.
Notwithstanding the form of the particulars given in the amended ground of appeal, no point has been taken on this appeal that the judge’s charge was deficient in failing to address or to attempt to cure the prosecutor’s alleged intemperate remarks or the alleged inappropriate comments of defence counsel. Nor was any argument advanced in support of the assertion made in the amended ground of appeal that his Honour had wrongly failed to discharge the jury following the prosecutor’s address or following inappropriate remarks by defence counsel. No doubt these aspects of the amended ground were not pursued because no application was made at trial to discharge the jury.
Able and interesting though the arguments put to this Court on behalf of the applicant may be, I am quite satisfied, for my own part, that they cannot succeed. There will, of course, be cases where the conduct of the prosecutor – who strains too hard at the leash for a conviction – or of a defence counsel who patently fails to do his duty by a client, will lead to a conclusion that justice has miscarried. Rugari[1] and McCulloch[2] are examples of the former kind. Birks[3] and Knowles[4] are examples of the latter kind. But before an appellate court will intervene to set aside verdicts on these grounds the case would need to be a manifestly clear one. Rugari was a case where the prosecutor had made submissions which were not founded upon evidence at all – leading to an immediate application for discharge by opposing counsel. McCullogh was a case where the prosecutor, with the right of reply, made continuous comments of a gratuitous nature which were so clearly inflammatory that the appellate court had no hesitation in finding miscarriage. In Birks and Knowles it was clear beyond peradventure that, either through inexperience or omission, the accused had not had matters in support of his case put before the jury. I do not, however, see the conduct of the prosecutor and/or defence counsel in this case falling into such a category of conduct as to cause this trial to miscarry. In determining such a matter, it is not appropriate to look selectively at a prosecutor’s address or to look selectively at a defence counsel’s address. The comments made by prosecutor and defence counsel in support of their cases at the close of evidence must be looked at as a “unit” and in the light of the issues in the case and the evidence which bears upon those issues. When that is done in this case (and in an appellate court it can only be done by recourse to the transcript), I cannot see that either counsel has exceeded his prerogative or fallen below his duty. It suffices to say that I have carefully looked at both addresses, and each appears to me to focus on relevant matters going to the issues in dispute; the prosecutor dealing – correctly, in my view – with what he perceived to be the arguments of defence counsel and defence counsel dealing with the case made against his client “in the broad”. The prosecutor, in this respect, made comments as to the impact of the lengthy cross-examination of the complainant, suggesting that it was more of a smokescreen than going to the “nub”, and – so far as possible – contrasting the complainant’s evidence with the applicant’s record of interview. It is true that the prosecutor suggested that the lengthy cross-examination of the complainant was in many respects “nit-picking” and unhelpful; and invited the jury to conclude that the circumstances in which the events occurred were quite inconsistent with consensual sex. But all of the prosecutor’s comments were directed to the issues and the evidence before the jury. The “high water mark” of the complaint seems to be that the prosecutor said that what was confronting the jury was a “classic Clayton’s defence … try anything … throw mud and hope it sticks”. No doubt, that can be regarded as a bit of licence by the prosecutor, but far from the sort which brings a trial undone.
[1](2001) 122 A.Crim.R. 1.
[2](1982) 6 A.Crim.R. 274.
[3](1990) 19 N.S.W.L.R. 677.
[4][1984] V.R. 751.
Likewise, I am far from satisfied that defence counsel’s address, when looked at in its entirety, was inappropriate or failed his client. On the contrary it seems to me that, in a case where allegations of sexual impropriety were alleged to have occurred between persons who had shared a long-standing relationship and where the complainant’s evidence was the high water mark of the Crown case, the tactics, and the address, of this experienced defence counsel were very much to be expected. In this context the lengthy – and at times seemingly tedious - cross-examination of the complainant was calculated, in my view, to demonstrate aspects of the relationship inconsistent with the Crown’s allegation of rape. That, too, was the focus of his address – a focus which, like the arguments in this Court, was directed to concentrating the jury’s mind on the first incident. The fact that the jury was concerned about the issue of “withdrawn consent” only serves, in my mind, to demonstrate that the points – subtly made by defence counsel – did not go unnoticed.
As I have said, in a case where two experienced criminal lawyers were involved, fought before a very experienced and senior trial judge, it would be very unlikely that objection would not be taken, or comment made, if counsel had made inflammatory and exceptionable remarks, or had otherwise failed in their duty. I am not surprised, for the reasons I have given, that no exception was taken in this case; nor does it surprise me that the judge did not take action of his own motion. Indeed, as the judge told the jury very early in his charge:
“ … the obligation is on me to see that the trial is a fair one and that it is conducted according to law … “
In my view there was nothing about this trial which suggested that it was not a fair one – and, accordingly, I reject the ground of appeal as amended; and – thus – would dismiss the application for leave to appeal against conviction.
The sentence application
So far as the application for leave to appeal against sentence is concerned, the submission made on behalf of the applicant focused on the minimum term. However, it was put by Mr Connellan that both the head and minimum sentences failed to achieve his Honour’s stated objective of enabling the applicant to pursue his rehabilitation. Mr Connellan contended that, although the applicant had an unenviable criminal history, it was notable that he had no history of sexual offending. He emphasised the fact that much of the applicant’s previous history had been associated with amphetamine use, but that - by the time he stood for sentence - it was accepted that he was free of drugs. Thus, it was put that – bearing in mind his Honour’s stated objective of enabling the applicant to continue to achieve his rehabilitation – the head sentence of six years was manifestly excessive for a person of the applicant’s age; as was the disproportionate minimum term of five years.
I cannot accept that the individual sentences for the two rapes, or the sentence imposed for the drug trafficking, were manifestly excessive. Nor indeed can the total effective sentence of six years be said to be manifestly excessive – demonstrating as it does the minimal cumulation which his Honour ordered. These were very serious examples of the crime of rape. The applicant took advantage, in a display of disgusting arrogance, of a long-time companion who had demonstrated charity to him. For offences which carry a maximum penalty of 25 years' imprisonment, sentences of four years and three years respectively (with cumulation of only one year) are, if anything, to my mind, far too lenient, particularly having regard to the fact that at the time they were committed the applicant was on parole. The leniency appears to have been afforded because his Honour took what seems to me to have been a charitable view of the applicant’s future prospects. It was because of those prospects that his Honour announced that he proposed to sentence the applicant “in a way which will hopefully enable you to achieve your rehabilitation in the not too distant future”.
It was submitted to this Court that the sentence imposed is too high to achieve this stated objective. I am afraid I cannot agree. The sentences are, in my view, as low as could have been imposed for crimes of this gravity. The sentences were, by direction, made concurrent with any period required to be served by the applicant for his breach of parole. Although the minimum term of five years might appear a little out of kilter with the “norm”, it is reasonably apparent from his Honour’s remarks and the applicant’s criminal history as to why a relatively small period of parole was fixed. In any event, even if I thought that there was some error made in fixing the minimum period, I would not be prepared to interfere because, for my own part, I do not think that any different sentences should have been passed.
In conclusion, I would like to express the Court’s appreciation to Mr Connellan, who appeared for the applicant on a pro bono basis and presented his submissions in a most competent and well measured manner.
VINCENT, J.A.:
I agree that the applications for leave to appeal against conviction and for leave to appeal against sentence in this matter should both be refused. I do so for the reasons advanced by the learned President.
EAMES, J.A.:
I agree with the orders proposed by the learned President and with his reasons.
WINNEKE, P.:
The formal order of the Court will be that the applications for leave to appeal against conviction and sentence are dismissed.
0
0
0