R v McL
[1998] VSCA 61
•9 October 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 156 of 1997
THE QUEEN
v
"R.H. McL"
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| JUDGES: | PHILLIPS, C.J., BATT and KENNY, JJ.A. |
| WHERE HELD: | MELBOURNE |
| DATES OF HEARING: | 14 and 21 September 1998 |
| DATE OF JUDGMENT: | 9 October 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSCA 61 First Revision 19 March, 1999 |
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Criminal law - Sexual offences - Incest, rape and indecency - Dates of counts - Variances in evidence - Whether date essential element - Whether conviction uncertain - Whether verdict must be taken on all counts - Whether verdicts unsafe and unsatisfactory - Uncharged acts - Admissibility - Inadvertent misdirection - Complaint - Direction that "the law says ..." - Whether Court of Appeal, after quashing convictions on some counts, may pass substitute sentences on remainder - Crimes Act 1958, ss.422(1), 569(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C.J. Ryan | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | P.F. Tehan Q.C. | Leanne Warren & Assocs. |
PHILLIPS, C.J.:
I have had the benefit of reading the judgment of Batt, J.A. in draft form. I concur in the conclusions His Honour has reached and I would subscribe to his reasons therefor.
BATT, J. A.:
Introduction
This is an application for leave to appeal against conviction. The applicant, whom I shall where necessary call "Ron", was born on 18 August 1952 and at the dates of the offences charged (which extended from 1 January 1988 to 31 August 1996) he was aged between 35 and 44 years. On 29 July 1997 the applicant and his wife (whom I shall call X) were presented in the County Court at Melbourne on a presentment alleging the commission of numerous sexual offences against the wife's daughters by a previous marriage, whom I shall call A and B, who were thus the applicant's step-daughters. They were born on 27 September 1976 and 14 September 1977 respectively. Some offences were alleged against both the applicant and his wife jointly and the balance against one or other of them. On arraignment the applicant pleaded not guilty to
•
ten counts of incest (counts 1, 3, 4, 5, 7, 10, 11, 20, 23 and 24), contrary, in the case of the earlier counts, to s.52(1) of the Crimes Act 1958 as substituted by the Crimes (Sexual Offences) Act 1980 and, in the case of the other counts, to s.44 of the first- mentioned Act ("the Act") as substituted by the Crimes (Sexual Offences) Act 1991, for which the maximum penalty under either section was imprisonment for 20 years;
•
two counts of gross indecency with a person under the age of 16 years who was under his care, supervision or authority (counts 2 and 8), contrary to s.50(2) of the Act as substituted by the Act of 1980, for which the maximum penalty was imprisonment for three years;
•
one count of rape (count 6), contrary to s.45(1) of the Act as substituted by the Act of 1980, for which the maximum penalty was imprisonment for 10 years;one count of indecent assault (count 9), contrary to s.44 of the Act as substituted by the Act of 1980, for which the maximum penalty was imprisonment for five years;
•
five counts of causing a child to take part in prostitution (counts 12, 14, 16, 18 and 19), contrary to s.6 of the Prostitution Regulation Act 1986, for which the maximum penalty was imprisonment for 7 years.
The maximum penalties set out above are those that were applicable at the dates of the offences, and by operation of s.114(1) of the Sentencing Act 1991 they were applicable at the date of sentence. At the latter date, 18 August 1997, sentencing practices arising out of the by then expired s.10 of that Act still applied to the offences. Although s.38, proscribing and defining rape and fixing a maximum penalty for it of 25 years' imprisonment, had been substituted in the Act by the Crimes (Rape) Act 1991 with effect part-way through the period alleged in count 6, it was inapplicable to the count because the period commenced before it did: Crimes (Rape) Act 1991, s.9(2) and (4).
The applicant's wife pleaded not guilty to the counts alleged against her.
The trial proceeded. On 5 August 1997 counsel for the applicant and counsel for his wife submitted that there was no case to answer in respect of certain counts alleged against their respective clients. After argument, her Honour gave a number of rulings, the effect of which was that the jury were to be directed to acquit the applicant in respect of count 1 (incest) and count 14 (child prostitution) and to acquit his wife in respect of certain other counts.
On 8 August 1997 the jury returned, in respect of the applicant, verdicts of guilty to counts 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 16, 18, 19, 20, 23 and 24 and verdicts of not guilty (by direction) to counts 1 and 14; and, in respect of the applicant's wife, verdicts of guilty to two counts (including count 8) and not guilty by direction to other counts. No verdict was taken on count 7, a matter I shall return to later.
The jury's verdicts in respect of the applicant meant that he had been found guilty of committing upon his elder step-daughter A:
• five offences of incest (counts 3, 4, 10, 20 and 24); • one offence of gross indecency (count 8); • one offence of indecent assault (count 9); and • four offences of causing a child to take part in prostitution (counts 12, 16, 18 and
19);and of committing upon his younger step-daughter B:
• one offence of gross indecency (count 2); • three offences of incest (counts 5, 11 and 23); and • one offence of rape (count 6).
In the counts of incest and rape of which the applicant was found guilty the penetration in the case of counts 3, 10, 11, 23 and 24 was penile oral penetration and in the other cases it was penile vaginal penetration.
The applicant admitted two previous convictions from two court appearances in 1971 and 1974 for illegal use of a motor car and larceny of a motor car, for each of which he had been sentenced to be imprisoned.
On 12 August 1997 counsel for the applicant made a plea in mitigation and her Honour heard submissions from the prosecutor.
On 18 August 1997 her Honour declared that the applicant was a serious sexual offender in respect of all counts on which he had been found guilty except counts 2, 3, 4, 8, 9, 12, 16, 18 and 19; and sentenced the applicant to be imprisoned for the following terms:
Count 2 - Gross Indecency - 9 months; Count 3 - Incest - 12 months; Count 4 - Incest - 12 months; Count 5 - Incest - 12 months; Count 6 - Rape - 18 months; Count 8 - Gross Indecency - 18 months; Count 9 - Indecent Assault - 3 months; Count 10 - Incest - 18 months; Count 11 - Incest - 18 months; Count 12 - Child Prostitution - 12 months; Count 16 - Child Prostitution - 12 months; Count 18 - Child Prostitution - 24 months; Count 19 - Child Prostitution - 24 months; Count 20 - Incest - 24 months; Count 23 - Incest - 12 months; and Count 24 - Incest - 6 months.
By operation of law, the sentences imposed upon counts 2, 3 and 4 are to be served concurrently; and her Honour directed that the sentences imposed upon counts 3 and 4 be served concurrently. Pursuant to s.16(3A) of the Sentencing Act 1991 as it then stood her Honour ordered that the sentences imposed upon counts 8 and 9 be served concurrently; that the sentences imposed upon counts 10 and 11 be served concurrently; that the sentences imposed upon counts 18, 19 and 20 be served concurrently; and that all other sentences be served cumulatively. The total effective sentence was thus 12 years' imprisonment. Her Honour fixed a non-parole period of 10 years. She declared that 10 days' pre-sentence detention be reckoned as already served.
By notices dated 27 August 1997 and filed with the Registrar of Criminal Appeals the following day the applicant sought leave to appeal against conviction and against sentence on the grounds stated in those notices. By orders made by the Registrar on 8 September 1998 new grounds were substituted. It is necessary to refer only to those touching conviction. They read:
"1. The jury verdicts are unsafe and unsatisfactory in all the
circumstances, and in particular:-
i)
The nature and quality of the evidence was such that it was not open to the jury to be satisfied beyond reasonable doubt of the Applicant's guilt;
ii)
The uncertainty of the dates alleged in the presentment and the Complainant's evidence embarrassed the Applicant in his defence; and
iii)
The cumulative effect of the above matters and those complained of in grounds two to five resulted in a miscarriage of justice.
2.
The Learned Trial Judge erred in refusing to discharge the jury after inadmissible evidence of 'uncharged' acts was led from the witness [A].
3.
The evidence of 'uncharged acts', even if strictly admissible, went beyond evidence of 'context' thereby causing the trial to miscarry.
4.
The Learned Trial Judge erred in her directions to the jury regarding proof of 'uncharged acts' and the use to be made of them.
5.
The Learned Trial Judge erred in directing the jury 'in general, the law says that people who are compelled to submit to sexual acts complain about them and so you are allowed to lead evidence of complaint, and you can use the absence or delay in making a complaint to suggest inconsistency of that witness who is giving evidence - that is to suggest that the person giving evidence is not a credible witness' (T484)."
On 14 September 1998 we granted the applicant leave to abandon his application for leave to appeal against sentence.
For completeness I record briefly that the applicant's wife, having been found guilty of committing an act of gross indecency with her eldest daughter A when the latter was aged 13 or 14 (count 8) and of committing incest with her second daughter B when the latter was aged 13 or 14 (count 22), was sentenced by her Honour to imprisonment for 18 months upon count 8 and 30 months upon count 22, with 18 months to be cumulative upon the sentence upon count 8, making a total effective sentence of 3 years' imprisonment. Her Honour fixed a non-parole period of 28 months. The applicant's wife abandoned an application for leave to appeal against conviction, but on 3 August 1998 a division of this Court allowed her appeal against sentence and varied the sentence by fixing a new non-parole period of 18 months.
The facts
I turn now to summarise the facts disclosed by the evidence below. The applicant and X, along with his step-daughters A and B, cohabited since 1980 in a house on Melbourne's south-western fringe. The union produced two further daughters, C, born 26 June 1981, and D, born 13 July 1982. The applicant and X were married on 24 May 1985. All four daughters gave evidence at their parents' trial. All the offences were alleged to have taken place in the family house or, in two cases, in the garage on the property.
With regard to the individual offences of which the applicant was found guilty, the evidence in summary was as follows. As to count 2, gross indecency upon B between 1 January and 31 December 1998, B recalled an occasion when her mother was out of the house collecting some bunk beds and B and the applicant were in the loungeroom. The applicant picked up B's hand and placed it over his penis. This continued for about five to ten minutes. B felt upset and hurt, immediately left the room and started crying.
As to counts 3 and 4, two counts of incest with A between 1 January 1988 and 27 September 1992, A recalled a hot night in the summer months when she was 13 or 14 years old and sharing a bedroom with D. The applicant entered the bedroom, got into the bottom bunk with A and made her perform fellatio upon him (count 3). He then turned A on to her back. He inserted his penis into her vagina and ejaculated inside her (count 4).
As to count 5, incest with B between 14 September 1988 and 31 December 1990, B stated that the first time that vaginal sexual intercourse occurred between her and the applicant was when she was aged around 10 or 11 years. She said that she was in the bedroom of the applicant and her mother folding and putting away clean laundry. The applicant took off her pants and inserted his penis into her vagina. The sexual activity continued for about 15 to 20 minutes. This caused B to bleed.
As to count 6, rape of B between 14 September 1988 and 3 August 1993, B recollected one occasion when she said, "No", to the applicant. She stated that they were in the bedroom and the applicant started touching her. She said, "No". The applicant got upset, pushed her on to the bed and held her arms open on the bed. He pulled down her pants, inserted his penis into her vagina and continued, despite her protests, for 20 minutes or more.
As to counts 8 and 9, gross indecency and indecent assault upon A between 27 September 1988 and 27 September 1991, A said that at a time when she was 13 or 14 years old she was in bed in a bedroom directly opposite her parents' bedroom. The doors of both bedrooms were left open. She heard her parents having sexual intercourse. She then heard her parents calling for her. At first, she did not respond. Eventually she went into their bedroom, where they both lay naked. The applicant pushed A's head down between her mother's legs. A was made to lick her mother's vagina while the applicant inserted his fingers into A's vagina. This activity lasted for about 20 minutes.
As to counts 10 and 11, incest with A and B respectively between 27 September 1988 and 31 December 1992, both A and B recollected an occasion when the applicant engaged in a sexual activity with them in the presence of each other. They both stated that this was an occasion when their mother was out for the evening attending bingo. A stated that she, B and the applicant were in the loungeroom and their younger sisters were in bed. The applicant made both of them kneel down in front of him and he unzipped his pants, grabbed their hands and pushed their hands on his penis and also made them suck his penis alternately. B gave evidence that she had already gone to bed when A came in and told her, "Ron wants to speak to you". B said that she went into the loungeroom with A, where the applicant made both kneel in front of him. He made them perform fellatio upon him alternately. A thought that she and her sister were naked, but B thought that they had their pyjamas on.
As to counts 12, 16, 18 and 19, child prostitution against A between 1 January 1989 and 27 September 1989 (two counts) and between 1 January 1989 and 31 December 1991 (two counts), and count 20, incest with A between 1 January 1989 and 31 December 1991, A said that on a typical bingo night her mother would prepare tea, and, after they had eaten it, would have a shower and get ready to go to bingo. She herself would then have a shower, after which her mother would apply make-up to her. A would then put on such clothing as short skirts, g-strings and lingerie. Her mother would then go out to bingo and her three younger sisters would be sent to bed at about 7.30 p.m. By about 8 p.m. a man would arrive and pay the applicant $20 to $25 for sexual intercourse with her. Before that the applicant would give her alcohol to help her relax, so that she was usually drunk by the time the man arrived. She said that there would be a knock at the door about 8 p.m. and she would be sent to the bathroom. The applicant would let the caller in and at a given signal from the applicant, a cough or a sniff, she would enter the loungeroom and introduce herself to the man as the baby-sitter and tell him that she was 18 years old. (Presumably this was not repeated when a man came a second or subsequent time.) She would then sit down and have another drink. She stated that after about 10 or 15 minutes the applicant would give another signal and she would have to go over to the man, kneel down in front of him, unzip his pants and perform fellatio. She stated that once the man's penis was erect she would take the man on to a mattress which had been placed on the floor by the applicant and let the man have sexual intercourse with her. (She was cross-examined about whether the mattress was covered, became stained or was cleaned. She rejected the proposition that prostitution did not occur.)
A stated that the applicant would usually sit in his chair, looking on and masturbating. On some occasions he would also hop on to the mattress, make A suck his penis and also join in the vaginal sex as well as also inserting his fingers into her anus and vagina and fondling her breasts.
She said that this happened almost every Thursday night over two to three years. She said that, prior to her being so used, she was told, apparently by the applicant, that she would have to have sex with the men as her mother was not going to do so any more. Her mother had been having sexual intercourse with lots of different men to please her step-father, and finally refused to continue to do so. After fights and arguments, it was eventually determined by the applicant that he would stop making her mother have sexual intercourse with these other men if he was permitted to have intercourse with A and B.
The usual client was a man called "John". He was the client who came the first time "this" happened to her. She had sexual intercourse with "John" anywhere up to 100 times. Other clients were "Rino" (or "Reno"), who came three or four times, and "Frank", who came once with "Rino". She recalled one occasion when the applicant borrowed a video camera and video-taped the activity being performed with both "Rino" and "Frank". The applicant joined in, having vaginal and oral sex with her. The applicant was angry and disappointed in her performance on video- tape. The video-tape showed herself, "Rino", "Frank" and her mother, but only parts of the applicant, who wanted to keep his face and tattoos out of the video-tape recording.
Prior to her 13th birthday, 27 September 1989, A had asked the applicant if she could have a slumber party. At first he refused, and then he agreed on condition that she did what she did on Thursday nights, saying that he would use the money received to pay for the party. At his direction, she telephoned "John", told him that it was her 19th birthday and that she needed money. He said that that would be okay, came to the family home, apparently promptly, had intercourse with her and handed over about $100 to the applicant.
The complainants' younger sisters, whom I shall call C and D, also gave evidence of what they overheard and saw on these "bingo nights", including, in C's case, a naked man and, in D's case, A with money the following mornings. (A denied benefiting financially.) C also gave evidence of walking into the loungeroom one day and seeing the applicant and her mother watching the television. She heard "sex noises" coming from the television set and saw A on the screen naked from the waist up. They yelled at her to get out. D gave evidence that on one "bingo night", when A was aged 12 years, she got out of bed to say goodnight to the applicant. She went into the loungeroom and saw the applicant seated with his pants down around his ankles and A kneeling in front of him with her head between his legs. The applicant asked D what she wanted. She said that she had forgotten to say goodnight. The applicant told her to go to bed. A turned her head round and D saw that she was crying.
The applicant's sister, whom I shall call Z, gave evidence of regularly driving his wife, and their neighbours "Rose" and Blanche, as I shall call her, to bingo every Thursday night up until about 1989 or after B had left home (which occurred in 1993). She said that the applicant only occasionally came with them. She then had a falling out with the applicant and had no further contact with him or his wife.
As to count 23, incest with B on or about 10 July 1993, B gave evidence that the last occasion when the applicant engaged in sexual activity with her was on a weekend when she was about 14 or 15 years old. She said that she had asked the applicant in the garage if she could go to a friend's home and he said words to the effect, "You don't get nothing for nothing". The applicant made B perform fellatio upon him for about 10 minutes.
Finally, as to count 24, incest with A between 1 and 31 August 1996, A said that after she left home in 1993 she still regularly came to the family home every two or three weeks to see her sisters. In or about August 1996 the applicant had purchased a motor car which he was fixing up for her. On an occasion when there were plenty of people around and the garage door was open, she thought it safe to go into the garage and be shown how the car worked. Once she had sat down in the driver's seat, the applicant closed the garage door and then walked back to the driver's side of the car. He opened the car door, unzipped his fly and exposed his erect penis. He grabbed the back of A's head and neck and pushed her mouth down over his penis. She was required to suck his penis for about two to three minutes. They stopped when they were interrupted by D knocking on the garage door and stating that there was a telephone call for A.
The first complaint to police occurred in 1993 in the following circumstances. In July of that year B ran away from home. Some days later she attended school, where her school friends asked her why she had left home. B told them that her father was sexually abusing her. One of them, whom I shall call Danielle, gave evidence that B was hysterical and crying too much to give details. Danielle took B to a school teacher. B eventually made a statement to the police on 3 August 1993. A was also spoken to by the police at that time. A, however, told the police that nothing had happened. She did this because she was frightened of what the applicant might do to her mother and the other family members. B eventually withdrew her complaint at the request of the applicant and her mother. She gave evidence that she and her mother started speaking again, and that her mother took her out to lunch and gave her presents. She was not allowed to see her sisters. She said that she withdrew her statement because she thought that she would be re- united with her sisters. Her mother told her that she should withdraw the statement and they subsequently attended a solicitor's office, where she stated that she had made everything up. She made a statement to the police withdrawing her previous statement. Despite these efforts, her mother did not speak to her again after that and she did not regain contact with her sisters.
This Court was informed that the applicant and his wife were interviewed by the police on separate dates in October 1996. They both answered "No comment" to all relevant questions. No evidence of these interviews was led at their trials.
The applicant gave evidence and called five witnesses.
The applicant said in evidence that he had been an invalid pensioner since 1986 and could not read or write. Since 1986 he had walked with a limp. (A and B in cross-examination had denied that he had a limp.) He denied committing any sexual acts upon or with his step-daughters or otherwise involving them in sexual activities. He said that his other daughter, whom I shall call E, lived at his home in 1988 for five or six months and attended school at that time. He stated that from about late 1986 he regularly attended bingo nights with his wife, his sister Z, Blanche and "Rose". On Thursday nights they played bingo at the Werribee Bowling Club and on Saturday nights they played at a venue in Altona. On Thursday nights bingo would commence about 7 p.m. and finish some time after 10 p.m.
The applicant stated that he once worked upon a car belonging to the son of a woman whom I shall call Y, and he produced a photograph depicting that car and his own in the garage. He said that Y came to their home every Sunday to see how the repairs were going. On two such Sundays, A also visited and they had an argument over money. He denied that he had a sexual encounter with her on one of those occasions. He stated that Y was present when he and A were in the garage looking at the cars.
He gave evidence of approaching a man called "John" at the Werribee Bowling Club about two months before the trial. His wife was present. He stated that he had seen "John" regularly at the Werribee Bowling Club when they played bingo there on Thursday nights.
During cross-examination by the prosecutor the applicant stated that on bingo nights he and his wife sometimes employed one of Blanche's daughters as a baby- sitter or at other times a girl from across the road or they would drop the children off at a friend's place to stay overnight.
Blanche gave evidence that she was the next door neighbour of the applicant and his wife. She had four daughters, two of whom were living with her at the relevant time. She gave evidence that she played bingo at the Werribee Bowling Club every Thursday night accompanied by the applicant and his wife, his sister Z, and "Rose". She said that the applicant did not come on every occasion. About two or three times a month the applicant did not come with them. Under cross- examination by the prosecutor, she said that her daughters did baby-sit for the applicant and his wife on several occasions, but she did not know who the other baby-sitters were.
John William Dannatt, the former treasurer of the Werribee Bowling Club, said that he had worked at the Club on bingo nights since 1985. He stated that the applicant and his wife regularly came on Thursday nights from around 1985 or 1986. He stated that the applicant's wife regularly attended until about 1993 and that from an earlier time the applicant had ceased coming as regularly as his wife. He later said in chief that the applicant "never attended as often as his wife but he did attend." He stated, partly in answer to a leading question, that the applicant was a regular attender with his wife for about three to four years. In cross-examination, he volunteered that once a month was regular to him. He said also that in his mind dropping off a person at bingo or picking the person up was being at bingo.
Dr. Giuseppe Garra of the Clinic of Werribee, said that the clinic's records confirmed that the applicant had been attending there since February 1986. When he first saw the applicant on 23 March 1988 he was given a history of back pain with associated headaches. At the time the applicant was taking codeine phosphate with occasional injections of either pethidine or morphine. The applicant walked with a little bit of a limp, which was worse if he had severe pain.
The applicant's daughter from a previous marriage, E, stated that in 1988, while she was attending Year 12 at high school, she lived at her father's home from March until late August. At other times she regularly stayed overnight and on many weekends until she married. She said that the applicant and his wife went to bingo many times. She telephoned the home many times to be told by the girls that their parents were at bingo. While she was living at the applicant's home, she stayed home most nights and the applicant and his wife went to play bingo "on occasions". When asked in chief whether it was a regular occurrence she stated, "Well, when I was there, not so regular - not so regular." When asked whether she looked after A and B from time to time, she said, "Once I looked after them, yes."
Y said that she had known the applicant and his wife since May 1993. In June 1996 she dropped off a car for the applicant to repair and that car remained with him until a couple of weeks before Christmas of that year. She said that she visited the applicant and his wife every Sunday and that on two such visits she saw A. She said that she never saw A alone with the applicant in the garage. She never saw A go into the garage. She said that there was discussion concerning A's car and A was told to check whether she was comfortable in the seat and to pump the brakes. She saw A sit in the car which was parked behind the garage. She could recall A having difficulty owing to the high platform shoes she was wearing and advising A not to wear such shoes when driving. In the time when she had known the applicant, he always had a limp and sometimes used a cane.
The applicant's wife gave evidence on her own behalf. It is sufficient for present purposes to state that she said that the incident which is the basis of count 8 (on which she was presented with the applicant) never happened.
Ground 1
I can now turn to the substituted grounds of proposed appeal. Under ground 1 Mr. Tehan Q.C. for the applicant argued a number of points. Most of them turned on asserted variances between dates in certain of the counts and the evidence relating to those counts, or variances between witnesses as to dates or ages. Points of that kind, if successful, would not result in the quashing of all convictions, but only those whose date the points called in question. These points asserted that the convictions were uncertain in the sense that the offence might have occurred during a time not specified in the count. Mr. Tehan sought to bring these points under sub- para. ii) of ground 1. But he distinctly abstained from submitting that the alleged uncertainty in the counts or the evidence embarrassed the applicant in his defence, and he could not, I think, have successfully so submitted, for the complainants identified the circumstances or context in which, according to them, the respective offences occurred. Thus an essential element of the sub-ground was missing. Nevertheless, I shall consider the arguments actually presented.
Mr. Tehan's first point related to count 2. That count alleged an act of gross indecency with B between 1 January and 31 December 1988. B was born on 14 September 1977. It was clear from her evidence that the count related to the first improper act committed upon her. She said that the "first incident" occurred when she was "10 or 11". She was unable to say in what year the incident occurred. Mr. Tehan submitted that on this evidence the incident might have occurred in the period from 14 September 1987 to 31 December 1987 or in the period from 1 January 1989 to 14 September 1989, each of which was outside the period counted. Referring to R. v. Trotter (1982) 7 A.Crim.R. 8 at 18, he submitted that the conviction on this count was uncertain in the sense that the offence might have occurred during a time not specified in the count. Precision as to dates was important in child sex offence cases, he submitted, referring to S. v. The Queen (1989) 168 C.L.R. 266 at 276 per Dawson, J. He pointed out that counsel for the applicant had made a no case submission on this count. He acknowledged that her Honour, having earlier told the jury the ages of the girls, had directed the jury that they had to be satisfied that the offences took place between the dates alleged. (It would have been apparent to the jury from what appears some pages earlier in the transcript of her Honour's charge that the satisfaction required as to elements, including dates, was satisfaction beyond reasonable doubt.) He submitted that, nevertheless, the possibility existed that the applicant may have been wrongly convicted on this count. When questioned by the Bench, Mr. Tehan said he was not putting it that it was not open to the jury to be satisfied beyond reasonable doubt that the offence occurred between the dates counted.
There are a number of answers to Mr. Tehan's first point. First, his own answer in response to the question from the Bench, when taken with her Honour's direction, is, in my view, fatal. The concession which the answer involved was, I consider, properly made; for a statement that a person was "10 or 11" at the time of some event ordinarily means that the event occurred within a period commencing towards the end of the person's tenth year and ending in the early part of the person's eleventh year. It is because of the event's relative closeness to the eleventh birthday that the speaker cannot say definitely that the person was aged 10 or, on the other hand, was aged 11. Of course, the meaning of the expression will depend upon the context. In its context in this case it was open, I consider, to the jury to be satisfied beyond reasonable doubt that the period it covered fell within the period counted. Secondly, this case is unlike Trotter, for there two indecent assaults were mentioned in the evidence and it was impossible to know whether there was unanimity on the part of the jury in respect of one or other of them. Here, on the other hand, the evidence disclosed only one event to which the count could relate. A submission by Mr. Tehan, which seemed designed to assimilate this case to Trotter, that some of the jury might have found that the offence occurred outside the period counted, cannot, as stated by the Chief Justice during argument, be accepted, for it is predicated upon those jurors' acting contrary to the judge's direction. Nor does S v. The Queen support the point. That case is obviously distinguishable, for the complainant's evidence there was of numerous offences without specificity, any of which was capable of being one of the three offences charged. The distinction is demonstrated in the judgment of Tadgell, J.A. in Director of Public Prosecutions v. His Honour Judge G.D. Lewis [1997] 1 V.R. 391. More particularly, the statement of Dawson, J. at 276 on which reliance was placed is not infringed by the count or the conviction here. The statement is in fact in these terms:
"Moreover, the law requires that there be certainty as to the particular offence of which an accused is charged, if for no other reason than that he should, if charged with the same offence a second time, be able to plead autrefois convict or autrefois acquit."
That is not the same as the proposition which Mr. Tehan propounded. Thirdly, an allegation in an indictment, presentment or information of the date upon which an offence has been committed is, at common law, not a material allegation unless the date is an essential part of the offence: Hackwill v. Kay [1960] V.R. 632 at 634, where the Full Court quoted a lengthy passage from the judgment of Atkin, J. for the English Court of Appeal in R. v. Dossi (1918) 13 Cr.App.Rep. 158 at 159-160 which concludes:
"It follows, therefore, that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual date specified in the indictment. It is, therefore, unnecessary to consider whether there was power to amend the indictment ..."
R. v. Tieman [1908] V.L.R. 4 is another Full Court decision to the same effect. Reference may also be made to s.375 of the Act. The offence the subject of count 2 does not fall within any one of the four cases where time is stated to be of the essence of the offence in the note (q) to Halsbury's Laws of England, 3rd edn., Vol.10, 387-388, para.702, cited with approval in Hackwill v. Kay at 634. It is true that an element of the offence, of which the jury had to be satisfied beyond reasonable doubt and which should be stated in the count (R. v. Martin (1840) 9 C&P 213; 173 E.R. 808), was that B was at the time of its commission under the age of 16 years. But that does not mean that the date was an essential part of the offence. Finally, though I doubt whether this would be an answer if the point of uncertainty were otherwise good, it is to be noted that the no-case submission, which began as being that the evidence on count 2 was insufficient, and became a submission that there was an uncertainty about the time, was abandoned after a brief discussion of dates, counsel for the applicant stating that he would not take her Honour's time.
Mr. Tehan's second point concerned count 5, which alleged vaginal penetration of B between 14 September 1988 (her 11th birthday) and 31 December 1990. The parties are in agreement that the incident the subject of count 5 was identified in the evidence as the first time vaginal sex occurred. B said that at the time she was "approximately around 10 or 11". Mr. Tehan's point was that, if this incident occurred at any time when B was aged 10, then it was not caught by the dates alleged for the count. He acknowledged that the point did not appear to have been the subject of a no-case submission. In my view, there is nothing in the point. There can be no uncertainty about the incident alleged to constitute count 5, for, besides being identified as the first time vaginal sex occurred, it was further identified as occurring in the applicant's bedroom when the complainant was folding and putting away washing. Moreover, the date of its commission was, for the reasons already given, not an essential element of the offence.
An element of the offence of which the jury did have to be satisfied beyond reasonable doubt was that B's age at the time of the commission of the offence. The count alleged that she "was above the age of ten years." There may be a question whether a person whose tenth birthday has passed but whose eleventh birthday has not yet occurred is above the age of 10 years (Lloyd's Bank v. Eagle Star Insurance Co. [1951] 1 T.L.R. 803, in another area of the law, suggesting an affirmative answer and R. v. Chapman [1931] 2 K.B. 606 suggesting a negative answer). But, even if the correct answer to the question be in the negative, it may be that on the whole of the evidence, including not only B's above answer but all the evidence forming the background to this count, the jury were entitled to be satisfied beyond reasonable doubt that at the time of the offence B was 11. (Her Honour had told the jury that she did not think there was any real issue about the age of A or B.) But it is unnecessary to express a final view on these questions. For no argument was addressed to the topic of age, here or below. Moreover, had the point been raised below, amendment could have been sought, and should have been granted, to insert in the count, conformably with the language of the then s.52(1) and as authorised by Rule 5(1) of the Presentment Rules 1958, immediately before the words "above the age" the words "of or". The pleading defect (for, if there was a defect, that was all it was) was curable, and "without injustice" (s.372(1)), for neither the substance of the allegation nor the evidence would have been changed.
Mr. Tehan's next point related to count 7, a count of incest alleged to have been committed upon B by penile vaginal penetration between 14 September 1988 and 3 August 1993. His complaint was that there did not appear to have been any evidence given on the count and that the count was not dealt with by the taking of a verdict, so that the presentment was not cleared. A complaint about a count on which the applicant was neither convicted nor sentenced may seem strange, and indeed not individually justiciable on appeal, but I took Mr. Tehan to be relying upon this point as showing general unsatisfactoriness of the verdicts. It is not, in my view, within the particulars of ground 1, but it may be that those particulars do not limit the opening words of the ground. I shall, in any event, deal with the point as it casts a cloud over the trial which should be dispelled.
Mr. Tehan drew attention to the fact that count 7 had been left by her Honour as an alternative to count 6. But, Mr. Tehan submitted, count 7 was not an alternative count either by statute or at common law. The principal statutory provision is s.425 of the Act as in force at the relevant time, that is, before its 1991 amendment (by virtue of clause 2(2) of the Schedule to the Crimes (Sexual Offences) Act 1991); compare also s.421(2). I agree as to statute. I agree as to common law also, for, although the elements of date, place, victim and mode of penetration alleged in count 7 are also alleged in count 6, there are two added elements, namely, the victim's age and knowledge that she was the applicant's step-child. In short, although the two counts largely overlap, they are not congruent. Mr. Tehan submitted that the problem which he said existed could be cured by a remitter by this Court under s.568(5) of the Act or by the entry of a nolle prosequi. But s.568(5) is inapplicable if only because there is no longer any appeal against the sentence on foot and, whether or not there are procedural or substantive difficulties with a nolle prosequi (cf. Gipp v. The Queen (1998) 72 A.L.J.R. 1012 and s.357 of the Act), the clear indication from counsel for the respondent was that that course would not be adopted.
But in truth there is no problem. For the reasons which follow, I consider that the presentment was cleared and the applicant ceased to be at jeopardy on count 7. First, although the elements of the offences the subject of counts 6 and 7 respectively are not identical and although those that are not common are important for criminal liability, the physical act alleged against the applicant of penile vaginal penetration of B during the period and at the place in question is the same, and, a verdict of guilty having been taken on count 6, it would, for reasons similar to those given in R. v. Weeding [1959] V.R. 298 and R. v. Sessions [1998] 2 V.R. 304 at 312-315, not have been correct for the judge to have taken a verdict on count 7. (The recent decision of the High Court in Pearce v. The Queen [1998] H.C.A. 57 does not appear to deal with the taking of verdicts, though it certainly deals with prosecutions and convictions. Sessions is cited twice by Kirby, J. without direct disapproval.) This is so, I consider, even though, having regard at any rate to the applicable maximum penalties, the offence the subject of count 6 (rape) was, at the time, less serious in the eyes of Parliament than that the subject of count 7 (incest). (For this reason, notwithstanding the order of the counts on the presentment, I think that a verdict should have been taken first on count 7 and only on count 6 if the verdict on count 7 was not guilty. If that be right, the applicant received the benefit of a favourable direction as to the counts, and for this reason, quite apart from any others, cannot complain about count 7.) Likewise, it is immaterial that her Honour's reason for not taking a verdict on count 7 (namely, that it was an alternative count) was not strictly correct. With regard to Mr. Tehan's contention that the presentment should have been cleared and to his reliance upon the failure to take a verdict on count 7 in support of the challenge to verdicts on other counts, two holdings in Weeding should be noted. The first was that the rule that a jury should return a verdict in respect of all counts charged in a presentment is no more than a rule of practice and should not be allowed to stand in the way of justice being done in a particular case. Here, in my view, justice required that a verdict should not be taken on one of the two counts if a verdict of guilty had been returned on the other. Two cases, albeit relating to summary prosecutions, are illustrative of the holding. In Reardon v. Baker [1987] V.R. 887 at 897-899 Phillips, J., applying Weeding, held that, where the possession for sale of heroin was the essential basis of a charge of trafficking of which the applicant had been convicted, conviction for the separate offence of possession of the same heroin at the same place and on the same date was offensive to the common law principle applied in Falkner v. Barba [1971] V.R. 332. There Gillard, J. held that, where the ultimate facts establish the proof of two offences of a similar character, it is a doctrine of the common law that an offender could not be convicted of both offences. The second relevant holding in Weeding was that the failure to take a verdict on some counts in a presentment does not invalidate the verdict on a count in the same presentment if that verdict is otherwise valid.
Secondly, once a conviction had been recorded on count 6, the applicant was, by virtue of s.422(1), no longer at jeopardy of prosecution or conviction for the offence the subject of count 7. Omitting a presently immaterial exception, that sub- section provided and provides:
"Where on the trial of a person for an indictable offence it appears that the facts in evidence amount in law to another indictable offence carrying a heavier penalty, he shall not for that reason be entitled to be acquitted of the offence charged and ... shall not be liable to be prosecuted afterwards for the other offence."
Mr. Tehan's next point under ground 1 related to counts 10 and 11, the incident of the alternate incest with A and B in the loungeroom one evening. His point was that A, who was born, as will be remembered, on 27 September 1976, said that the incident occurred when she was "about the age of 12", whereas B, who was born on 14 September 1977 and thus was 11½ months younger than A, said that she was "14, I think" at the time of the incident. There was thus a discrepancy of some three years in their evidence. The period alleged in each count ran from A's twelfth birthday until some months after B's fifteenth birthday. But, Mr. Tehan submitted, the discrepancy between them as to the approximate (derived) date of the incident was marked, both girls could not be correct in their evidence, and the verdicts on those counts were unsafe. A short answer to this submission is, as the Chief Justice said in argument, that the jury, acting in accordance with her Honour's direction (unduly favourable to the applicant) that the dates of each of the counts are essential ingredients of them and that the jury must be satisfied that the offences took place between the dates alleged, were entitled to prefer the evidence of the older girl. After all, B's answer quoted above suggests that she was uncertain as to her age at the time. Contrary to a submission which Mr. Tehan made at one stage, A's evidence as to her age at the time of the incident bore upon B's age then and, more materially, upon the (derived) approximate date of both the contemporaneous offences. The jury were, indeed, entitled to be satisfied beyond reasonable doubt that the incident took place within the period stated in the two counts, relying on the estimate of either of the complainants of her age at the time, for the approximate date of the incident derived from the evidence of each girl fell within each count. The evidence of the two girls was similar in essentials save as to the (derived) approximate date of the incident and as to whether they were naked or dressed in pyjamas. The evidence of each bore on the count concerning her sister as well as on the count concerning herself. Neither verdict was unsafe.
The next point concerned count 12, the first of the prostitution counts, which alleged that the offence took place between 1 January 1989 and 27 September 1989, the latter date being A's thirteenth birthday. Now, count 16 related to the incident of prostitution to fund the slumber party for A's thirteenth birthday, when "John" paid $100. Count 20 related to the applicant's participation by way of vaginal penetration in the activities giving rise to counts 18 and 19, one of which was prostitution with "Rino" and the other with "Frank". Those three offences were alleged to have occurred on the evening on which the applicant made the pornographic video depicting his daughter prostituting herself with the two men. Mr. Tehan accepted, indeed asserted, that count 16, 18, 19 and 20 related to the respective events which I have stated. His first contention, as I understood it, was that, since count 16 related to the prostitution to fund A's thirteenth birthday slumber party, count 12 had to relate to an earlier incident and it was therefore incumbent upon the Crown to prove that one incident occurred before A's thirteenth birthday or, perhaps more accurately, before the act of prostitution to fund the party for that birthday. I agree. He then submitted that A did not seem to give any evidence as to when the activity commenced, noting that she said that it happened almost every Thursday night over two to three years. In my view, however, the Crown did lead evidence of the occurrence of one specific incident before the incident the subject of count 16, being evidence on which the jury were entitled to find count 12 proved beyond reasonable doubt. It is clear from A's evidence of the applicant's response to her approach to him to be allowed to have a slumber party that she was already engaging in acts of prostitution on Thursday nights at his direction, for she said, "He said, only if [I did] what I was doing on Thursday nights" (emphasis added). Likewise, the fact that the incident to fund the slumber party occurred after and as a result of A's telephoning "John" made it clearly open to the jury to be satisfied that before that incident A knew, and had prostituted herself with "John". Those, then, are general propositions as to previous occurrences. But there is also specific evidence. A said that the first time "it" happened was with "John". She said that she was in the bathroom when he arrived and she went on to describe what happened on that evening, at any rate until she came into the loungeroom in response to the applicant's signal. Thereafter, it might be said, her evidence was expressed in terms of habitual occurrence rather than of the specific occurrence. That incident was clearly different from that in count 16 and thus necessarily occurred before A's thirteenth birthday. Perhaps out of caution I should mention the commencement of A's cross-examination by counsel for the applicant. She was asked a question about money changing hands "after what occurred before the slumber party". She answered that she had seen about $100 change hands. It is clear from the context, in my view, that counsel meant, and A meant, the incident to fund the slumber party, which necessarily occurred a little before the party. It was thus not, in my view, established by the cross-examination that the only occasion of prostitution before the slumber party was that almost immediately before it for which $100 was paid by "John". Mr. Tehan also said that the counts were not put as representative because a no case submission succeeded on count 14. Why, he asked, was count 12 allowed to stand? It is true that the counts were not put as representative. The no case submission succeeded in relation to count 14 because there was conceded to be no evidence of any event taking place that could make out that count. The evidentiary position of count 12, as I have tried to show, was different.
As I understood him, Mr. Tehan in his outline sought to make a second point relating to the child prostitution counts and the associated count 20. He submitted that no video was ever produced at trial, although it was said that one was made; that none of the three men, "John", "Frank" and "Rino", was called by the Crown; that there was no complaint until some years later and that was after A had earlier told police that nothing had happened; and that A was unable to say when the incident that was video-taped happened. As to these matters, it seems that two videos were made and there was evidence from which, I am inclined to think, the jury might have inferred, for what it was worth, that A believed they had been burnt by the applicant and her mother in the backyard. But there was no positive evidence of such burning. There was no evidence that any of the three men had been identified. The four matters relied on by Mr. Tehan was simply matters for the jury's consideration. They do not themselves lead to the conclusion that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused of counts 12, 16, 18 and 19 and the associated count 20. But I bear them in mind in considering the next submission.
The final submission under this ground was of a different nature and related, rather, to particular i) of the ground. Mr. Tehan submitted, correctly, that there was strictly no corroboration of the allegations of the two girls. But he recognised that there was some generally confirmatory material, or material confirmatory of peripheral matters. They were both victims in relation to counts 10 and 11. In relation to the prostitution counts, B did say that A dressed in her mother's outfits, but, Mr. Tehan pointed out, she did not see A having intercourse with her father or indeed any other man. Nor did C. Indeed, except in relation to count 10, no witness ever saw A having intercourse with any man. The evidence of D as to seeing A between her father's legs in the loungeroom when his pants were down did not, Mr. Tehan correctly submitted, in fact corroborate any particular count on the presentment. He submitted that D's evidence as to seeing A crying was of limited value and that her evidence as to seeing A have alcoholic drinks on bingo nights and with money on mornings following was very general. He acknowledged that D had heard male voices and that C had seen a naked male. B had seen two videos, but they were not produced at trial.
Summing this up, Mr. Tehan submitted that, given the nature and breadth of the allegations, it was extraordinary that whatever confirming evidence there was, was so limited. He stressed that there was no evidence of a forensic nature, for example of stains on the mattress. Further, complaint was made late (except that to Danielle) and was then withdrawn. Both girls had lied to the police. The applicant gave evidence on oath denying the allegations. On some matters his evidence was, Mr. Tehan submitted, generally confirmed. For example, he said, the applicant's attending bingo on Thursday nights was confirmed by Blanche and his daughter E; his having a limp by Dr. Garra; and his attending to Y's motor car by Y.
Mr. Tehan relied on the other arguments under ground 1 (and I bear in mind particularly his four comments in relation to the child prostitution counts and associated incest count) and on grounds 2 to 5 as well, and submitted that there had been a miscarriage of justice, referring to Gipp v The Queen (1998) 72 A.L.J.R. 1012.
| 58 | In response, Mr. Ryan, for the respondent, submitted that the complainant A, in relation to counts 12, 16, 18, 19 and 20, was materially supported by the evidence of - • her sister B, as to the general happenings on bingo nights (such as hearing male |
voices, music and sex noises and seeing A sometimes in nighties);
• her sister B, as to the existence of the video and as to its storage in a cupboard in
the bedroom of the applicant and her mother;• her sister C, as to the general happenings on bingo nights and as to seeing her
parents watching the video depicting A naked from the waist up;
• her sister D, as to bingo nights; and • to a lesser extent, the applicant's sister Z. Mr. Ryan pointed out that B had made complaint in 1993, when aged 16, and withdrew the complaint the following year in order, she said, that she might be re- united with her family. Mr. Ryan submitted, correctly in my opinion, that the test to be applied in the determination of the so-called unsafe and unsatisfactory ground was still that set out in M v. The Queen (1994) 181 C.L.R. 487, referring to R. v. Taafe [1998] V.C.A. 4 at para.53. The view there expressed has subsequently been agreed in by Winneke, P. in R. v. Saffoury [1998] VSCA 36 at p.9.
Making my own independent assessment of the evidence in the light of the submissions of the parties and the charge, and in particular of the matters to which Mr. Tehan drew attention, I consider that upon the whole of the evidence it was well open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on each of the counts on which he was convicted. The verdict on each of those counts is not unreasonable or such as cannot be supported having regard to the evidence. There was relevantly no miscarriage of justice. (As will appear later, I conclude under ground 4 that one error in the charge led to a miscarriage in relation to counts concerning B, but it did not infect all the verdicts.) Prominent among my reasons for this conclusion are the fact that the evidence of both complainants concurs, in essential matters, in respect of the alternate fellatio required of them in the loungeroom (counts 10 and 11); that the evidence of A goes to the extent of a grave allegation against her mother, such as ordinary human experience suggests is unlikely to be fabricated even if a complainant were prepared to fabricate allegations against a step-parent; the general confirmation of peripheral matters, admittedly not amounting to corroboration, contained in the evidence of C, D and (in relation to A) B referred to earlier; and the fact that on close examination the evidence of the applicant's attendance at bingo on Thursday nights shows the attendance to be neither frequent nor regular, leaving plenty of opportunity for the child prostitution alleged to occur. Though there were some discrepancies on small points in or between the complainants' evidence and some matters (e.g. absence of forensic evidence) on which strong comment could be made to the jury, the nature and quality of the complainants' evidence was not, in my view, such that the jury should have entertained a reasonable doubt. It was not inadequate, tainted, or otherwise lacking in probative force. In short, the assessment of the evidence of the complainants in the light of the defence evidence and the criticisms of the Crown evidence was eminently within the province of the jury: compare Saffoury per Winneke, P. at p.11.
For the foregoing reasons, I am of opinion that all branches of ground 1 fail.
Grounds 2, 3 and 4: the uncharged acts and the course of the trial
These three grounds, which I have set out earlier, relate to three aspects of the trial in respect of evidence of uncharged criminal acts on the part of the applicant. The three aspects are, respectively, her Honour's refusal to discharge the jury because of the leading of the evidence; the alleged improper use or effect of the evidence; and her Honour's directions to the jury concerning the evidence. Mr. Tehan argued the three grounds together, and it is convenient to take them together for the purpose of putting them in context, though I shall treat the arguments and my reasons relating to grounds 2 and 3 separately from those relating to ground 4. Mr. Tehan identified the evidence of the uncharged acts concerned as:
(i) evidence by A that before any incident of penetration had occurred the applicant had touched her in some unidentified manner having sexual overtones;
(ii) evidence by A that she had sexual intercourse in return for payment to the applicant almost every Thursday night with male visitors to the home, usually "John"; and that that had occurred "lots of times, heaps of times ... anywhere up to 100 times";
(iii) the evidence of A that on these occasions the applicant would masturbate and "insert his fingers into my anus, insert his fingers into my vagina and fondle my breasts";
(iv) evidence by A of the making by the applicant of the pornographic video;
(v) evidence from A of her having intercourse with "Rino" on the two or three occasions other than the occasion the subject of the relevant count;
(vi) evidence of D that she saw A with her head between the applicant's legs when his pants were down.
All the foregoing evidence, except that last stated, had been given before the application for discharge of the jury was made. The question of uncharged acts was first mentioned by the prosecutor on the first day of trial, when answering an objection to his asking A a leading question. In the jury's absence he indicated that he proposed to lead evidence of uncharged acts as showing the relationship between the applicant and A. Counsel for neither accused voiced any objection. Shortly before the adjournment that day and still in the absence of the jury her Honour stated what she understood to be the evidence of uncharged acts and that she proposed the following morning to give the jury a direction about the use to which that evidence might be put. Counsel for the applicant asked the judge to hear counsel in the morning on the point and her Honour agreed to do so. The following morning, counsel for the applicant applied for the discharge of the jury on the grounds that the prosecutor had led from A evidence that went outside the realms of the counts charged and that this had put his client in an unenviable position because of the highly prejudicial nature of the evidence. He submitted that the situation was "unrectifiable really". He was particularly concerned about the evidence of intercourse with persons other than the applicant, which, he said, could not go to the relationship between the two of them, especially as the prosecutor had gone on to ask the witness to put a number on the "lots" or "heaps" of times. He acknowledged that he had not objected, saying in substance that he had expected the evidence to be confined within "certain realms". Her Honour sought the prosecutor's assistance on identifying the evidence relating to the counts from count 12 onwards. After that was done, the prosecutor said that the evidence of sexual intercourse with other men on numerous occasions and of the applicant's masturbating himself was part of the general illicit sexual relationship he had with her; that it was part of the overall pattern; and that it explained A's failure to complain because it showed the domination of her by the applicant.
Her Honour then gave her ruling. She said that the argument was not pressed or only faintly pressed that the evidence in item (i) above was inadmissible and should lead to a discharge of the jury. She said that the application was made on the grounds that the evidence was inadmissible and highly prejudicial, because the jury would inevitably draw the conclusion that the applicant must have been guilty of the offences charged, using the impugned evidence impermissibly. She said that the question whether or not the jury should be discharged depended on whether she was of the view that the evidence was admissible. She then stated that in her view the evidence in relation to the Thursday nights was admissible because, if accepted, it went to show a pattern of conduct occurring almost every Thursday night for two to three years and went to help the jury understand the context in which the particular events the subjects of counts 12 to 21 occurred. It went to assist the jury to understand the reasons why the child, A, did not complain, "if that becomes an issue during the trial". It went to help the jury understand the setting in which those events occurred and, in her view, the trial would result in a sense of artificiality if the evidence as to the multiple occasions was excluded. She accepted that the evidence was prejudicial, but expressed the view that it was highly relevant. She then moved to other matters, concluding with a statement that she proposed to direct the jury at the first opportunity as to the use they could make of the evidence.
Shortly thereafter the jury entered the Court and were addressed by her Honour. She pointed out that some of the evidence went beyond the events alleged on which they had to decide. She told them that they could only use that other evidence if they were satisfied that the events did occur and then only for the limited purpose of placing the events which were alleged in relation to each individual count in context. She said, seemingly with approval, that the prosecution asked the jury to use the evidence to better understand the setting in which the offences the subject of the counts that they needed to decide occurred. She instructed the jury that it was very important that they did not reason simply because of this evidence of other conduct that the accused persons were persons likely to have committed the offences the subject of the counts. They could not substitute evidence of some other activity which occurred, if satisfied that it did occur, for the matters they needed to be satisfied about in relation to each of the counts. The evidence then resumed.
In her charge her Honour said that she needed to give the jury some directions about "uncharged acts, or relationship evidence". She drew attention to the fact that there had been a certain amount of "evidence about other criminal conduct" alleged against the applicant only, not his wife also, which was not the subject of any of the specific counts. She said that the evidence seemed to her to fall into two categories. The first was the evidence of "sexual activity between [A] and [B] and their father". (In that quotation and in others that follow the emphasis is mine.) She referred to the evidence of A as to previous contact without sexual penetration, and continued, "There is the evidence of [B], and the evidence of [D], who, on her evidence, stumbled across a situation" where A was in the process of performing oral sex on the applicant on an occasion not specified and not the subject of any count. The second category was the evidence of other acts of prostitution said to have happened but which were not the subject of any particular count. It was "not evidence which goes to any particular count. It is what is called relationship evidence or evidence of other uncharged acts." Referring to what she had said at the time "the evidence" was given, her Honour said that "evidence of criminal conduct between the girls [and the applicant]" could only be used by the jury, first of all, if they were satisfied that it had occurred. But, if so satisfied, they could still only use it for the limited purpose of "determining whether or not there was a sexual relationship between [A] and the accused and [B] and the accused, that is, [the applicant]. ..., so that you can look at the evidence which is given regarding the counts in a proper realistic setting."
Her Honour warned the jury that they must not reason that, simply because the accused might have done something else of a criminal nature in the past "with [A] and with [B]", he was the kind of person likely to have committed the offences the subject of the counts. They could only convict him on the counts before them if satisfied of all the facts that go to make up those charges. They could not use that other criminal conduct to make up any elements in the counts before them. Her Honour went on:
"Now, the law recognises, I think, what some people call a guilty passion of an adult for a child, and the way that this evidence traditionally is allowed in our courts is, if you find this evidence credible, if you accept it, that it simply makes it more credible to understand how the acts occurred in the counts that are actually before you.
Now the evidence of the Thursday nights is slightly different, because it is not suggested that you can use this evidence to establish a guilty passion between [A] and the men participating in the acts of prostitution, or in any way so directly as that, but it is simply put before you, as I understand it, to give you the background pattern of what it was that happened on Thursday nights in the [McL] household. It is put because you might otherwise not be able to understand the evidence which is given in relation to the particular prostitution counts. It might explain for you, if you accept it, why it was that [A] submitted on the particular occasions which are the subject of the counts, and it is put before you simply in that way. It is not put before you in order to demonstrate that the acts which are alleged to have occurred on those particular nights can be proved to have occurred by using this evidence. You must be careful to use that evidence in the way that I have directed you to."
Her Honour concluded this portion of the charge by repeating her warning that the evidence of prior sexual conduct "between [the applicant] and A and B" and the prostitution evidence had no relevance to the charges against X.
Grounds 2 and 3: arguments and conclusions
These grounds may be taken together for they raise questions of admissibility. I agree with her Honour that whether the jury was to be discharged depended upon whether the evidence in question (or, perhaps, sufficient of it) was inadmissible. The tenor of ground 3 is not entirely clear to me. It concedes for the purpose of argument strict admissibility but, as I understand it, goes on to raise questions of admissibility, prejudice and use to which the evidence could be put.
Mr. Tehan contended that all the evidence in question was inadmissible. He submitted that the incidents referred to in the items of evidence listed above as (i) and (vi) did not assist the jury in understanding the relationship between the parties. There was no specification in the evidence to indicate when either act had occurred. Both acts were vague in nature and the prejudicial impact of the evidence outweighed its probative value. As to the evidence of uncharged acts of prostitution, he pointed out, correctly, that the counts of child prostitution were not representative and therefore the evidence of the uncharged acts was not admissible on that basis. He submitted that this evidence was not admissible as relationship evidence as its probative value had "clearly (to) transcend" its prejudicial effect (referring to McHugh, J., dissenting, in Pfennig v. The Queen (1995) 182 C.L.R. 461 at 513, citing Brennan, J. in Perry v. The Queen (1982) 150 C.L.R. 580 at 609, though McHugh, J. also used "outweigh" as an alternative); and that the Crown had to establish this before the evidence was admissible (referring to R. v. Vonarx (unreported, Court of Appeal, 15 November 1995)). He said that uncharged acts are too readily admitted as evidence of relationship, referring to Gipp v. The Queen at paras.176 and 181 per Callinan, J. and also to Gaudron, J.'s reference to their admission being exceptional at paras.10 and 11 of that decision. He submitted, I believe correctly, that the evidence was not led to show the identity of the offender or to demonstrate by some peculiar method of operation the object of improbability of the applicant's innocence, referring to R. v. Wackerow [1998] 1 Qd.R. 197, noted by Callaway, J.A. in R. v. Best (unreported, Court of Appeal, 23 July 1998) at p.12. Nor, he submitted, was it similar fact evidence. There was, he said, no feature of the evidence which made it directly relevant to proof of guilt on the prostitution counts, each of which had their own specific factual background, as the prosecutor had pointed out. Mr. Tehan claimed that the evidence was not said to show a guilty passion, referring to Dawson, J.'s discussion of that topic in S v. The Queen at 275. He conceded that the evidence might have become relevant if, for example, failure to complain was raised, but contended that it should not have been given by the complainant in chief, citing Gaudron, J. in Gipp at para.12. He said that, where evidence of relationship is admitted, a strong connection between that evidence and the crime will be shown, citing O'Leary v. The King (1946) 73 C.L.R. 566 at 577-578 per Dixon, J. as to the unintelligibility of the transaction there without the evidence, and Wilson v. The Queen (1970) 123 C.L.R. 334 at 339. He concluded by submitting that proof that the applicant procured A to engage in sexual penetration on many occasions with "John" did not establish a relationship with the applicant "in so far as other men were concerned".
In my opinion, for the reasons which follow, which are substantially those advanced by Mr. Ryan for the respondent, the evidence was admissible. All of it went to show that the applicant had a strong sexual attraction to, indeed a guilty passion for, A. Compare R. v. Josifoski [1997] 2 V.R. 68 at 73-76. Items (ii) to (v) of the evidence did so in that, when he caused her to prostitute herself, the applicant was present deriving, besides money, sexual gratification by observation, masturbation and participation from time to time. Secondly, an allegation that a man prostituted his step-daughter when she was aged between 12 and 15 is so unusual that it can only be properly understood in its complete factual context, or, in other words, evidence of four isolated incidents of the prostitution of A by the applicant in a period of three years might seem incredible to a jury, but a different view might be taken if those incidents were set in their full historical context of systematic defilement by the girl's step-father. The evidence about uncharged acts of child prostitution, then, did go to the relationship between the applicant and A and also showed a pattern or system operating on most Thursday nights during the period, without the aid of which the jury's deliberations would be conducted in an artificial or unrealistic context; compare O'Leary at 577-578. Mr. Tehan at one stage submitted that the prosecution case on the child prostitution counts could have been conducted without reference to the uncharged acts other than the making of the pornographic video. That may be so, but, for the reasons I have given, it did not have to be so conducted. It is true that the evidence was prejudicial, but, in my view, its probative force outweighed its prejudicial effect. The foregoing bases for admission were advanced by the prosecutor below and put by her Honour to the jury. I should add that, in my view, Gipp, on which Mr. Tehan placed much reliance, does not assist him. With the possible exception of Gaudron, J. all justices considered the evidence of uncharged acts with the complainant admissible. It is true that Callinan, J. at paras.176 and 181 did not accept that non-specific highly prejudiced evidence might be led as "part of the essential background to the other evidence, thereby disagreeing with the statement of Deane, J. in B v. The Queen (1992) 175 C.L.R. 599 at 610 cited in Vonarx at 7. But, even if one treats Gaudron, J. as agreeing with that view, I do not consider that it was part of the ratio decidendi of Gipp or, allowing for the views of the other justices, even that that part of the passage cited from Vonarx by Callinan, J. was disapproved of by the Court or even that Callinan, J. disapproved of the remainder of that passage. As I say in para.81 below, the necessary directions were given save for reference to B.
I have so far spoken with little differentiation between the items of evidence of uncharged acts enumerated by Mr. Tehan. But there are further specific grounds on which certain individual items of evidence were, or perhaps were, admissible. The making of the pornographic video was an integral part of the events of the activities on the evening when "Frank" attended, which gave rise to counts 18, 19 and 20. It would be quite unrealistic to require the exclusion of that evidence (and the later evidence from C of seeing the applicant and her mother watching the portrayal of A naked from the waist up on the television screen). When that was raised with Mr. Tehan, he countered by pointing out that there was also evidence later of a video depicting the mother having intercourse with a strange man. That, however, was not one of the items of evidence that Mr. Tehan raised as an uncharged act. In any event, the evidence about that video was elicited by questions specifically directed to that video and its subject matter in the cross-examination of B by the applicant's counsel. Another individual item is the evidence that "Rino" had had intercourse with the complainant more than once. For the reasons I have already given, I consider that evidence to have been admissible. It was argued for the respondent that it was in any event admissible as evidence by which the complainant could identify "Frank" and so identify the occasion founding counts 18, 19 and 20. I prefer not to decide as to this suggested additional ground of admissibility, because it may have been possible, albeit with considerable difficulty, to adduce evidence about "Frank's" visit without disclosing that "Rino" had intercourse with A apart from on the occasion of that visit.
With regard to the items of evidence of physical contact between the applicant and A other than the subject of the counts, whilst the evidence as to the touching is, I agree, vague, the evidence from D as to A's being between the applicant's legs leaves little to the imagination: if fellatio was not occurring, it would soon, on that evidence, have occurred. It is true that neither of these occurrences is dated. I do not, however, think that the observations of Dawson, J. in S v The Queen at 275 mean that this fact alone renders the two items of evidence inadmissible. As to the initial touching, which I have already held was admissible, Mr. Ryan submitted, as I understood him, that in incest or other penetration cases prior advances are admissible as such. He pointed out that in Longman v. The Queen (1989) 168 C.L.R. 79 there was evidence of other sexual touching by the applicant extending over years (see, for example, p.82 of the report), which did not attract the attention of the High Court. Of course, its admissibility was not the issue in that case. Nor can one be sure whether any of those other touchings preceded the offences charged: compare the facts stated in Longman v. The Queen [1989] W.A.R. 374 at 377 and 381. It appears that the evidence was led, and accepted as admissible, to prove the absence of an innocent association or the existence of a guilty passion: ibid., at 377. The admission of prior advances seems to me to be justifiable on the ground that they show the beginning of a sexual relationship and are the first manifestation of a guilty passion for the complainant. It might be said that, if they were sufficiently close to the act of penetration in issue, the evidence of that would be incomplete without them. I do not find it necessary to reach a concluded view on the additional ground for admission put forward by the respondent.
There is another ground on which the evidence (other than the first item) was tendered and was admissible, namely, to explain the absence of complaint, that is, to rebut criticism of A's evidence for her failure to complain by showing the domination of her by the applicant: compare Gipp at para.173 per Callinan, J.; and R. v. Josifoski at 77. Mr. Tehan's argument seemed to me to concede that that would have been a good ground of admissibility if the evidence had been led in reply, for counsel appearing for the applicant did, in my view, raise the question of delay in complaining in more than one part of his cross-examination. In the circumstances of this case, I consider that Mr. Tehan's submission is unrealistic and that the passage from the judgment of Gaudron, J. in Gipp at para.12 (not found in any other judgment), on which he relied, is distinguishable on the facts. I say this because here the failure to complain was, in the words of Mr. Ryan, "odds on" to arise. The issue of failure to complain had in fact been raised in A's evidence in chief without objection. Further, it seems that it was clear from the committal proceedings that the point would be raised at trial. Compare Josifoski at 75 and 81. In any event, as I have said, the evidence in question was otherwise admissible.
Finally, it is of significance that, with the exception of the evidence from D, the evidence of each of the uncharged acts complained of had been led in chief from A without any objection; and it was not until the next day that the application for discharge of the jury was made. On the first day counsel for the applicant, as I read what he said, simply asked to be heard on the following day as to the form of the direction which her Honour was proposing to give in relation to the evidence of uncharged acts. It seems reasonably clear from counsel's submissions on the second day that what provoked his application for discharge of the jury was reflection upon the prosecutor's request for A's best estimate of the number of times "John" had had sex with her and her answer, "Anywhere up to 100 times". But that figure was simply the reflex of A's earlier unobjected to evidence that she was caused to prostitute herself almost every Thursday night and that this lasted for two or three years. Although it may be that the quantified answer "Anywhere up to 100 times" nevertheless took defence counsel by surprise, A's evidence as to uncharged acts, including no doubt the general, but unquantified, statements as to their frequency and duration, was, we were told without objection, contained in the statements in the hand-up brief. Despite this, there had not, as her Honour pointed out, been any request on behalf of the applicant for the preliminary determination of the admissibility of the evidence nor was any objection taken at the time that any of it was led. Whilst I do not say that that constitutes an insurmountable bar to the application for discharge or to the success of grounds 2 and 3, it does make me more confident in my conclusion that the evidence was all admissible and that there was accordingly no high degree of need - indeed, no need - for the jury to be discharged, a high degree of need still being the requirement to be shown to obtain the discharge of a jury: R. v. Eastwood (unreported, Court of Appeal, 17 September 1998) at paras.5-6 and 22.
For the foregoing reasons, grounds 2 and 3, in my opinion, fail.
Ground 4: Arguments and conclusions
Ascertainment of the ratio decidendi of Ryan is, with respect, not without its difficulties. All members of the Court concluded that the Court of Criminal Appeal was not empowered by s.569(1) to pass substitute sentences on the counts on which the convictions were not quashed. (Counts of the latter kind I shall for convenience call "remaining counts".) In my view, the reason for the conclusion of the High Court which commanded the assent of a majority of the justices was that there had been no appeal against conviction or, it may also be, sentence on the remaining counts. Thus, Aickin, J. at 15 said that he was unable to see how it could appear to the Court of Criminal Appeal that an appellant was properly convicted when the propriety of the conviction was not before it. Similarly, Wilson, J. (with whom, as I have said, Gibbs, C.J. agreed) said at 20 in substance that he did not think that the sub-section conferred power to substitute a higher sentence "on a conviction, not the subject of appeal either as to conviction or sentence," even where the original sentence formed part of a total effective sentence arrived at on considerations which included a conviction which had been quashed. Again, his Honour said, at 21, that the sub-section did not authorise any interference with "the sentences which have been separately imposed on counts not the subject of appeal". At 20 Wilson, J., in what Callaway, J.A. in his elucidation of Ryan in Gibb at 581 called the critical part of his Honour's judgment, said of the sentence which may be either affirmed or replaced by a substituted sentence:
"It must be a sentence which has a direct relation to the conviction which has been quashed. If it relates exclusively to a conviction on a count in the indictment in respect of which there was no appeal, and is not itself the subject of appeal, there is no occasion to consider its adequacy with a view either to affirmation or substitution." (Emphasis added.)
Stephen, J. at 4 listed the required elements before the sub-section could be applied as: an appellant, an indictment containing several counts or parts, and a situation in which it appeared to the Full Court both that there was no proper conviction on some count or part and that on some other count or part there was a proper conviction. But his Honour, differing from Gibbs, C.J., Aickin and Wilson, JJ., held that the second part of that third requirement was satisfied where the appellate court was able to determine the correctness of the conviction on the remaining counts, even though with regard to them there had been "no appeal against sentence", adopting the words of Lord Tucker, speaking for the Privy Council in R. v. Edirimanasingham [1961] A.C. 454 at 462. At 7 his Honour did state that a consequence of the improper joinder was that in the absence of any appeal on the handling counts the Court of Criminal Appeal was in no position to form any conclusion about the convictions on those counts. At 9 his Honour noted that the common case of the proper application of s.569(1) would be where, following conviction and sentence on several counts, appeals against conviction on all counts are taken and one or more succeeds. That is this very case. Brennan, J. held that, since the remaining counts had not in that case properly been joined with the counts the convictions on which were quashed (for the former were neither founded on the same facts nor formed part of a series of offences of the same or a similar character, but rather, were unconnected), he was of the view that the case was not a proper one for the exercise of the power conferred by s.569(1). He went on, however, to express the obiter view at 25:
"Given a regular joinder of the counts, there is no injustice in increasing the sentence in respect of a conviction which stands if the increase is occasioned by the setting aside of the sentence which carried the appropriate penalty for conduct which constitutes either an element of the offence of a part of the series of offences for which the appellant stands convicted ... The power to affirm the sentence or to substitute another sentence under s.569(1) is not needed where there are appeals against that sentence under s.567A or s.568. Section 569(1) must have an operation additional to that for which those sections provide."
His Honour expressed at 25-26 the further obiter view, somewhat similar to that of Stephen, J., that it could "appear" to the Full Court that an appellant had been properly convicted on some remaining count without the propriety of the conviction having been canvassed in argument before the Full Court and in particular without there having been an appeal against conviction on that remaining count.
The foregoing analysis of the judgments in Ryan shows that it was critical to the decision that there had been no appeal against conviction (or, possibly, sentence) on the remaining counts. It is the corollary of that ratio that, had there been such an appeal, the Court of Criminal Appeal would have been empowered to pass a substitute sentence in respect of the remaining counts. Here, on the other hand, there was an application for leave to appeal against conviction on all counts, which, if the other members of the Court agree with my conclusions on it, will mature into an appeal. Further, if the other members of the Court agree, it will have appeared to the Court of Appeal, within the meaning of s.569(1), that the appellant (that is, the applicant), though not properly convicted on some counts has been properly convicted on some other counts, so that the Court may either affirm the sentence passed at trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdicts on the counts on which the Court considers that the appellant has been properly convicted. Thus, the three requisite elements for the application of the sub-section stated by Stephen, J. will have been satisfied. (His Honour, as I have indicated, took a more liberal view than Gibbs, C.J., Aickin and Wilson, JJ. as to how part of one of those requirements might be satisfied, but, subject to the possibility discussed below, the other judgments did not dispute the statement of the elements.) Similarly, if I consider the matter simply by reference to the words of s.569(1), since the propriety of the applicant's convictions on the remaining counts has been called in question before this Court and indeed has been upheld by it, I am most respectfully of the view that on the natural reading of the sub-section the pre-conditions for its application are met.
As will have appeared, there are passages in some of the judgments in Ryan suggesting that an appeal against sentence on the remaining counts would have been sufficient. (I doubt that any such passage treats such an appeal as necessary.) This may derive from the words of Lord Tucker. But, with respect, as the passage which I have cited from the judgment of Brennan, J. demonstrates and, as indeed the concluding remark of Wilson, J., found at 18, concerning R. v. Craig [1967] 1 W.L.R. 645 recognises, in the case of an appeal against sentence on remaining counts the power conferred by s.569(1) is not needed, by reason of the provisions of s.568(4), which expressly contemplates the passing of another sentence "whether more or less severe". See also Gibb at 582. Moreover, an appeal against sentence, strictly at least, does not raise the propriety of the underlying conviction.
I acknowledge, too, that there are in the judgment of Wilson, J. in Ryan at 20- 21 statements which suggest that the sentence which may be either affirmed or replaced must be one "which has a direct relation to the conviction which has been quashed" and that even a close relationship between the two sets of counts would be insufficient to empower the appellate court to affirm or replace the sentence. Indeed, the logical consequence of his Honour's statement at 21 that,
"where a separate sentence is imposed in respect of each count in an indictment on which there is a conviction, I do not think it is open to say that the sentence which is imposed directly on the conviction which is later quashed on appeal contains any element of survival because of some relationship to the remaining counts [,and in] truth, there is no such relationship.",
would appear to be that the sentence on the remaining counts could never be affirmed or replaced pursuant to s.569(1). Yet, that is inconsistent with what is implied in or the corollary of the statement appearing shortly thereafter to the effect that the sub-section does not authorise any interference with the sentences which have been separately imposed "on counts not the subject of appeal". The obiter remarks of Brennan, J. at 25 demonstrate, in my respectful view, that the sentence affirmed or replaced "must plainly be a sentence which, after an appeal against conviction on one or more counts is allowed, is supported by the conviction or convictions which stand; it cannot be the sentence in respect of the conviction or convictions which are quashed." Be that as it may, the passages from 20-21 in the judgment of Wilson, J. considered in this paragraph do not represent the views of a majority, but only of two, of the justices in Ryan.
For the reasons I have given, I am of opinion that the pre-conditions to the applicability of s.569(1) are satisfied. This Court, therefore, has power to affirm or replace the sentences on the remaining counts. It seems to me indeed that the word "may" confers, not a discretion, but an authority which must be exercised by taking one or either of the alternative courses specified. As will appear, I consider that the Court should pass substitute sentences on the remaining counts, but I should indicate at this point that Aickin, J. in Ryan at 14-15 expressed the view that it can seldom be appropriate to use s.569(1) in a case where a new trial has been ordered under s.568(2), as I would propose should be done here. His Honour was concerned that, if the accused were to be convicted on the new trial, the trial judge would then impose a sentence appropriate to that offence alone and would under the then legislation have been authorised to impose a sentence to commence on the expiration of the increased sentences by then being served on the remaining counts. But the legislation relating to the imposition of sentences has been changed since Ryan was decided. Now, in the ordinary case, unless otherwise directed by the court every term of imprisonment imposed on a person must be served concurrently with any uncompleted sentence of imprisonment imposed on that person, whether before or at the same time as that term: Sentencing Act 1991, s.16(1); and, in the case of a term of imprisonment imposed on a serious sexual offender for a sexual offence the court may direct otherwise than that it be served cumulatively on any uncompleted sentence of imprisonment imposed on that offender, whether before or at the same time as that term: s.6E of that Act as it now stands and s.16(3A) as it stood at the time of sentence. Moreover, since Ryan was decided the principle of totality and its method of implementation have been further expounded by the High Court in Mill v. The Queen (1988) 166 C.L.R. 59, especially at 63 and 67. Thus, the sentencing judge after the new trial, at any rate where, as here, service of the custodial portion of the sentences imposed on the remaining counts would not have been completed, would be able to achieve a sentencing disposition which did not infringe the principle of totality or crush the applicant. (I distinctly abstain from any comment as to what that sentence should be in the event of conviction.) Moreover, one must bear in mind that the new trial may result in acquittals. In that event, if the sentences on the remaining counts as they presently stand are manifestly inadequate and if this Court has not passed another sentence, the anomaly created by the alteration of the overall sentence in consequence of the setting aside of convictions on some counts, the existence of which Brennan, J. demonstrated in Ryan at 23 and 24, would remain.
I have earlier set out in summary form the facts relating to the remaining offences. In addition, I treat as included in these reasons her Honour's extensive and careful sentencing remarks, in which she sets out her factual findings (within the limits of the jury's verdicts), the aggravating or mitigating factors found by her, and her categorisation of the criminality involved in the several offences the subject of the remaining counts. Subject to one clarification, I agree with all her Honour has said. The clarification is that I take her Honour's acceptance that there was little likelihood that the applicant would re-offend to be based solely on the circumstance that "there is no reasonable prospect of [the applicant's] having the occasion to engage in sexual conduct with [his] daughters again." For her Honour did "not conclude that [the applicant] would voluntarily have desisted ... had it not been for these court proceedings". Considerations of totality no doubt constrained her Honour at least as to the individual sentences which she imposed on the counts on which the applicant was convicted. With the removal of sentences accounting for a net period of imprisonment of 3½ years as a result of the quashing of the convictions on the four counts (if the other members of the Court agree in that course), the individual sentences on the remaining counts and the total effective sentence remaining fall to be assessed for affirmation or replacement in a different light. In my view, they should not be affirmed. For reasons stated briefly below, they are now manifestly inadequate.
I adopt without repeating her Honour's sentencing remarks to which I have referred, up to the commencement of the imposition of the sentences themselves. The intra-familial offences now in question extended over some eight years. They were perpetrated to gratify the applicant's carnal lust and, in some cases, for financial gain as well, by the exercise of adult power over a young child (and, in one case, a second young child) in grave breach of the trust owed by a step-parent to his step-daughter. It is unnecessary to repeat what this Court and its predecessor have said on many occasions about the abhorrent nature and devastating consequences of the crime of incest. I regard counts 10 and 11, where incest was committed upon each step-daughter in the presence of the other alternately, as particularly serious instances of the crime. The offence constituted by count 20, committed in the presence of two men with whom the applicant had been forced to prostitute herself, was also a very serious instance of the crime. It is scarcely possible to imagine a worse offence of gross indecency than that committed by the applicant, involving, as it did, forced cunnilingus of the victim's mother. Child prostitution is a serious offence. The four instances of it here, committed against a step-daughter, are serious indeed. The offences the subject of counts 18 and 19, in which two men were involved on the same occasion and which the applicant video-recorded, are heinous. In short, the crimes were grave indeed and the degree of criminality involved was very high. I accept Mr. Tehan's submission that the present total effective sentence on the remaining counts is a significant one, but in my firm view it is manifestly inadequate. In reaching that view, I have taken into account that the applicant's incarceration will be more burdensome for him than would otherwise be the case by reason of the necessity for it to be spent in protective custody.
In arriving at the sentences I consider appropriate, I, like her Honour, apply s.10(6) of the Sentencing Act 1991, with the result that, except where the applicant falls to be re-sentenced as a serious sexual offender in respect of a sexual offence, the maximum custodial sentence available on each count is to be that prescribed, reduced by one-third to take into account the abolition of remissions. By reason of the conviction of the applicant on counts 3 and 4 and his being sentenced by this Court to a period of imprisonment in respect of those counts, he is to be sentenced as a serious sexual offender in respect of the remaining counts of incest after counts 3 and 4. I have had regard to the need to observe the principles of proportionality and totality and the need to avoid a crushing sentence. But, unlike her Honour, I consider that the preferable method of achieving those objects is, notwithstanding s.16(3A) of the Sentencing Act as it stood at the time of sentence by her Honour, to follow the course preferred in Mill at 63, R. v. Lomax [1998] 1 V.R. 551 at 567 and 568 and R. v. Grabovac [1998] 1 V.R. 664 of imposing individual sentences that are as nearly appropriate as the number of offences will permit and then making them largely concurrent. I point out particularly that Lomax was a case where the serious sexual offender provisions had application. In my view, for the reasons I have given earlier and her Honour gave, count 8 should attract the maximum available custodial sentence of 2 years and counts 18 and 19 the nearest whole number of years to the maximum custodial sentence available, that is, 4 years' imprisonment. I would make concurrent the sentences for offences occurring on the same occasion or in the same episode. Considerations of totality and more particularly of double jeopardy require sentences on sundry other offences to be concurrent as well. I do not, indeed, think that the principle of totality or that of proportionality would preclude the imposition of more severe sentences and directions as to cumulation than I propose, but I think that that of double jeopardy does. In the particular circumstances of this case, however, the latter principle does not require that the total effective sentence resulting from the individual sentences now to be imposed after directions as to concurrency or cumulation be lower than the total effective sentence resulting from the individual sentences imposed by her Honour after such directions.
I would therefore propose that, in substitution for the sentences passed on the appellant on the below-mentioned counts by her Honour, the appellant be sentenced to the following terms of imprisonment, namely:
Count 3 - Incest - 2 years; Count 4 - Incest - 2 years; Count 8 - Gross Indecency - 2 years; Count 9 - Indecent Assault - 2 years; Count 10 - Incest - 4 years; Count 11 - Incest (B) - 4 years; Count 12 - Child Prostitution - 2 years; Count 16 - Child Prostitution - 2 years; Count 18 - Child Prostitution - 4 years; Count 19 - Child Prostitution - 4 years; Count 20 - Incest - 4 years; Count 24 - Incest - 2 years.
I would direct that the sentences imposed on counts 3, 4, 12, 16 and 24 be served concurrently on each other; that the sentences imposed on counts 8 and 9 be served concurrently on each other; that the sentences imposed on counts 10 and 11 be served concurrently on each other; and that the sentences imposed on counts 18, 19 and 20 be served concurrently on each other. I would direct that otherwise the sentences imposed by this Court be served cumulatively upon each other. That makes a total effective sentence of 12 years' imprisonment. Having regard to the gravity of the offences, and the lack of rehabilitative prospects, I would fix a non- parole period of 10 years.
Orders
I would propose that the Court make orders in accordance with the following
minutes:
1. The application for leave to appeal against conviction is granted.
2. The appeal is treated as instituted and heard instanter and allowed to the extent set out below, but otherwise is dismissed.
3. The convictions on counts 2, 5, 6 and 23 are quashed, the sentences imposed on those counts are set aside, and a new trial be had on those counts.
4. The convictions on counts 3, 4, 8, 9, 10, 11, 12, 16, 18, 19, 20 and 24 are confirmed.
5. The sentences passed on the applicant in the County Court at Melbourne on 18 August 1997 on counts 3, 4, 8, 9, 10, 11, 12, 16, 18, 19, 20 and 24 and the non-parole period then fixed are set aside and in substitution therefor the applicant is sentenced to the respective terms of imprisonment set out earlier, and the declarations as to concurrency and cumulation set out earlier are made, making a total effective sentence of 12 years' imprisonment; and in respect thereof a non-parole period of 10 years is fixed.
6. Declare that the period of 427 days is the period of pre-sentence detention already served by the applicant under the sentence and direct that the making of this declaration and its details be noted in the records of the Court.
KENNY, J. A.:
I have had the benefit of reading in draft the reasons for judgment of Batt, J.A. I agree in the reasons given and in the orders proposed by his Honour.