R v Menta
[2004] VSCA 57
•31 March 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 123 of 2002
| THE QUEEN |
| v. |
| JOSEPH MENTA |
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JUDGES: | PHILLIPS and CHARLES, JJ.A. and BONGIORNO, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 March 2004 | |
DATE OF JUDGMENT: | 31 March 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 57 | |
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CRIMINAL LAW – Sexual misconduct with a child under 16 – 27 counts – Count 4, maintaining a sexual relationship over 4 years – Informal admissions followed by denials – Separate offences alleged within period covered by count 4 – Presentment failing to state that the other offences were alternative to count 4 – Count 4 not otherwise particularised – Whether trial miscarried – Appeal dismissed – Crimes Act 1958 s.47A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | J.D. McArdle QC | Office of Public Prosecutions |
For the Applicant | N. Pappas | Victoria Legal Aid |
PHILLIPS, J.A.:
This is an application for leave to appeal against conviction. The applicant, who is now 35 years of age, was arraigned in the County Court on a presentment containing some 28 counts, 27 of which alleged sexual misconduct with a child of his de facto spouse over a period running from April 1996, when the complainant was ten years old, to July 2000, by which time she was 14. Count 28 was severed and has not yet been tried; it is of no present relevance. Otherwise, the charges on the presentment were of an indecent act with a child under 16 (counts 1, 10, 13 and 22) and of incest (involving full penile penetration) and one count, count 4, maintaining a sexual relationship with a child under 16. This last was an offence against s.47A of the Crimes Act 1958. Counts 1 to 14 on the presentment were all "between dates" charges, the earliest date being 1 April 1996 and the latest 30 September 1999. Counts 15 to 27 alleged conduct occurring during 2000.
The applicant pleaded not guilty to all charges, notwithstanding that in a second record of interview he made extensive admissions. He stated, for instance, that he had been involved in a sexual relationship with the complainant which he asserted was mutual and that this had progressed from indecent acts when she was ten years of age to full penile penetration when she was 13 years old. He denied many details in the complainant's account and offered additional details of offences not specifically described by her.
It may be said in very broad terms that ultimately the jury convicted the applicant of those counts which he had admitted, and acquitted him on those he had denied. In the result, he was found guilty on counts 1, 4, 6, 7, 15, 16, 17, 20, 22, 23, 24, and 26, and found not guilty in relation to counts 2, 3, 5, 8, 11, 12, 18, 19, 25 and 27. He was also found not guilty by direction in relation to counts 9, 10, 13, 14, and 21.
The present application focuses upon the verdicts in respect of counts 1, 4, 6, and 7. As already indicated, count 4 was an allegation of maintaining a sexual relationship in the period from 1 April 1996 to 30 September 1999. Count 1 alleged an indecent act committed between 1 and 30 April 1996; count 6, an act of sexual penetration between 1 March and 30 September 1999 and count 7, another act of sexual penetration between those dates.
The matter was listed for sentence on 8 May 2002 but having learnt in the meantime of the decision in this court in the R. v. GJB[1], which was delivered after the trial concluded, His Honour accepted that counts 1, 6 and 7 on the presentment should have been left to the jury only as alternatives in the event that the applicant was acquitted on count 4. But he was convicted on count 4 and so the judge declined to record a conviction on counts 1, 6 and 7, and declined to impose any sentence on the applicant therefor.
[1](2002) 4 V.R. 355.
His Honour then sentenced the applicant to imprisonment as follows: on count 4, the count of maintaining a sexual relationship, four years; on each count of incest, four years; and on count 22, a count of indecent assault, two years. With orders for cumulation, the total effective sentence became one of nine years imprisonment and a non-parole period fixed of six and a half years, it being declared that the applicant was sentenced in respect of count 16 and following as a serious sexual offender. There were 83 days of pre-sentence detention.
Although, as filed, the notice of application for leave to appeal contains a great number of detailed grounds, only one of them is now pursued. In addition, application was made to join a further ground, ground 6A, and we heard argument on that ground in conjunction with ground 6 while deferring for the time being whether leave should be granted to make the amendment.
Ground 6 alleges, in short, a failure to give sufficient particulars in respect of count 4. Ground 6A alleges error in the direction to the jury not to take into account any relevant substantive counts when dealing with count 4, that leading, it is said, to "insufficient particularisation of the individual acts of sexual penetration that constituted the basis of that count", namely count 4. Thus, both roads lead to Rome; both seem to be relying specifically upon the lack of particularisation under count 4, in part at least, because of the specific pleading of counts 1, 6 and 7 which in the light of GJB should have been left as alternatives.
It is necessary now to set out count 4. As amended, it alleged that the appellant -
“… between the 1st day of April 1996 and the 30th September 1999 maintained a sexual relationship with [the complainant] a child under the age of 16 to whom he was not married and who was under his care, supervision or authority in that on at least three occasions other than those referred to in Counts 2, 3, 5, 6, 7, 8, 11 and 12 he took part in an act of sexual penetration with [the complainant] a person under the age of 18 years whom he knew to be the child of his de facto spouse in that he introduced his penis into the vagina of [the complainant].”
It will be noticed that count 4 depends on sexual penetration "on at least three occasions other than" those referred to in the other counts, being those other counts which allege sexual penetration on dates occurring within the same period as that marked out by count 4. The complaint is now that when those other counts are put aside, as count 4 itself directed expressly, there must have been insufficient particulars under count 4. I simply note at this stage that of the other counts identified in count 4 (an identification which was completed at trial by amendment made by leave granted on 13 February 2002) the applicant was, in the end, convicted only on counts 6 and 7. The complaint about the lack of particularisation supposes that the jury, when considering count 4, properly disregarded the allegations in count 6 and 7, and I might add, the allegation in count 1, although that was a charge of an indecent act.
It is true that the jury were told to disregard the other counts when considering count 4; and so much they were bound to do, at least with regard to acts of sexual penetration, by the very terms of count 4. It follows that the complaint now made is a complaint that could have been made at trial. If there were no sufficient particulars under count 4, that was so at trial, and yet no complaint was then made; no exception was taken and no particulars sought. It follows that it is too late now for the complaint to be entertained. Counsel relied upon the fact that the decision in GJB became known only after the trial concluded, but the lack of particularisation does not depend upon the decision in GJB; it turns simply upon the framing of count 4.
Moreover, it must be remembered that the maintaining of a sexual relationship over the years alleged in count 4 was something itself admitted by the applicant in the course of his second interview with the police. It is true, as Mr Papas sought to point out, that the admissions are not altogether as clear as they might have been; but the judge in his sentencing remarks described the admissions, and without rehearsing what was said then, suffice it to say that Mr Papas took no exception with what was said in those sentencing remarks.
This is not, in short, a case of simple denial. There can be little doubt but that the jury convicted the applicant in part because of his own admissions. Thus, after warning the jury not to take into account the acts otherwise charged when considering count 4, the judge added[2]:
"The accused has said on oath, as I have read just a moment ago, that no such type of thing happened at all. [The complainant] has given evidence they did on a number of occasions. The accused man has said in the interview that they did. He said a couple of dozen at most, 20 at another stage. I have read that out to you. But you will bear in mind that insofar as the record of interview answers are given, and before you could rely upon those answers as confirming what [the complainant] has said, you need to be satisfied that beyond reasonable doubt that the answers that the accused gave were truthful answers, in other words, he was not just making it up."
[2]At pp.1678-9.
Mr Papas sought by reference to some answers, here and there within the record of interview, to establish that the admissions made in regard to sexual penetration during the period of time marked out in count 4 did not go beyond count 6 and 7; but, in short, I was not persuaded. It is scarcely surprising, then, that no particulars were sought under count 4; counsel might well have thought it a forensic disaster to seek to have the conduct particularised in detail, especially if achieved by reference to the applicant's own confession.
It follows that, in my opinion, there is nothing in ground 6 alleging, in short, a failure to give sufficient particulars under count 4. Ground 6A was argued in conjunction with ground 6, and I am not clear that ground 6A adds anything at all. At one stage in the argument, it seemed that Mr Papas, in reliance upon GJB, was arguing that there was error in the joining of counts 1, 6 and 7 as separate charges when they should have been mentioned only as acts constituting particulars of the charge under count 4. But to say just that is to misunderstand GJB. GJB does not deny the possibility that the offences that are relied upon to establish a charge of maintaining a sexual relationship contrary to s.47A can be charged separately; it establishes only that, when charged separately, such counts must be regarded as alternative to the more general count of maintaining a sexual relationship of which they can be seen to be particulars. Thus in GJB[3], the President said:-
“If charged on separate count they will become particulars of and alternatives to the offence of ‘maintaining a sexual relationship’ “.
[3]At p.464.
In this instance, the jury were seized of counts 1, 6 and 7, and even if properly regarded as particulars of count 4, there can be no doubt about the jury's conclusion that those three offences were committed. Count 4 refers to sexual penetration, but under s.47A, as it now stands, the particulars under that section of maintaining a sexual relationship need not be of the same character and, as Mr Papas argued, count 1 could be regarded as a particular of count 4, just as could counts 6 and 7, once it came to reframing the presentment. The allegations of counts 6 and 7 as separate offences on the presentment, together with count 4, occasioned no miscarriage, or at least no miscarriage once it is accepted that, upon the jury's verdict of guilty on count 4, no verdicts should have been taken on counts 1, 6 or 7.
Insofar as Mr Papas relied upon an irregularity in the form of the presentment, for want of some express qualification to the effect that counts 1 to 14 were being charged only as alternatives to count 4, Mr Papas was unable, despite a
valiant attempt, to identify how that defect in the pleading led to a miscarriage in this instance. Indeed, the jury seems to have reached a very sensible verdict, if I may say so, acting in respect of count 4 on the more general evidence that they had both from the applicant and the complainant and dealing seriatim, as they were told to, with each of the other counts.
Finally, the respondent conceded in his outline that by virtue in the decision in GJB, if a conviction on count 4 is to stand, the convictions on counts 1, 6 and 7 should be quashed. By "conviction" the respondent meant the findings of guilt which themselves come within the meaning of "conviction" in s.567 of the Crimes Act 1958: see R. v. Celep[4]. The trial judge himself, in deference to GJB, not only declined to sentence on these counts, but also declined to record a conviction. But in my opinion, we should intervene to quash the verdicts of guilty, as agreed by the Crown.
[4][1998] 4 V.R. 811.
CHARLES J.A.:
I entirely agree.
BONGIORNO A.J.A.:
I agree.
PHILLIPS J.A.:
Accordingly, the court orders are as follows: The application to amend the grounds of appeal is granted and the application for leave to appeal against conviction is also granted. The appeal is allowed, but solely for the purpose of quashing the findings of guilt inherent in the jury's verdict in respect of counts 1, 6 and 7. Otherwise, the appeal stands dismissed.
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