R v Monks No. Sccrm-02-191, Sccrm-02-241

R v MONKS
[2002] SASC 352
Court of Criminal Appeal: Debelle, Williams and Bleby JJ

DEBELLE J This is an appeal against conviction and sentence.
The appellant was charged with three counts of unlawful sexual intercourse and with one count of indecent assault. The complainant in each instance was the appellant’s stepdaughter who, at the time of the alleged offending, was eight years old. At the time of the trial, the complainant was aged nine and a half years.
The appellant was convicted on one count of unlawful sexual intercourse and on the count of indecent assault. He was acquitted on the other two counts of unlawful sexual intercourse. He was sentenced to imprisonment for a total period of seven and a half years with a non-parole period of five years. He appeals against both the conviction and the sentence.
The appeal against conviction
All of the offences were alleged to have occurred at Millicent between 1 September 2000 and 29 May 2001. The first count of unlawful sexual intercourse was alleged to have occurred in an abandoned church at Millicent. The complainant alleged that the appellant had taken her to the church and had sexual intercourse with her by penetrating her vagina with his penis. The appellant was convicted on this count. The complainant’s evidence was that the incident occurred one morning after she and the appellant had visited her grandmother’s house. She said that they went to the abandoned church and went inside. She said that the appellant had been smoking and had dropped the cigarette butt to the floor and stood on it. He then knelt down, pulled her pants down and placed his penis in her vagina. The appellant was convicted on this count by a majority verdict.
The second count of unlawful sexual intercourse was alleged to have occurred in the laundry of the family house at Millicent. It was alleged that on this occasion the appellant had sexual intercourse with the complainant by penetrating her vagina with his penis. He was acquitted on this count.
The third count charged the indecent assault. It was alleged that the appellant took the complainant’s hand and made her masturbate him. The incident was alleged to have occurred at the family home. The appellant was convicted of that crime by a majority verdict.
The fourth count charged the appellant with unlawful sexual intercourse. It was alleged to have occurred at the family home while the complainant was having a bath. The complainant said that the appellant had come into the bathroom and inserted his finger into her vagina. Her evidence was that the incident occurred after her mother had gone down the street to make a call from a public telephone. The appellant was acquitted on this count.
The grounds of appeal are that the convictions on the first and third counts are unsafe and unsatisfactory in that
(1) they are inconsistent with the acquittals on the second and fourth counts;
(2)there is no evidence to corroborate the complainant’s evidence on the first and third counts;
(3) there is a lack of detail in the evidence in respect of the third count;
(4)the complainant had made a previous inconsistent statement to a witness; and
(5)the complainant had in her evidence denied making the previous inconsistent statement.
The appellant contended that, when regard is had to the inconsistent verdicts, the vague evidence of the complainant, the lack of any supporting evidence of the complainant’s account, and the inconsistent statements, the verdicts were unsafe and unsatisfactory.
Inconsistent verdicts?
The principles to be applied when dealing with apparently inconsistent verdicts were examined in MacKenzie v The Queen (1996) 190 CLR 348 by Gaudron, Gummow and Kirby JJ with whom Dawson and Toohey JJ agreed and have been recently reviewed by this Court in R v Liddy (2002) 81 SASR 22. This is an instance of a factual inconsistency arising upon verdicts on different counts in the information so that the test is one of logic and reasonableness. The test to be applied was expressed by Devlin J in R v Stone (unreported, Court of Criminal Appeal, UK, Devlin J, 13 December 1954), approved in MacKenzie at 366. In order to succeed
“[The defendant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”
Although the question is whether a jury has reasonably come to its conclusion, the High Court emphasised in MacKenzie that, if there is a proper way by which the verdicts may be reconciled, a court of criminal appeal might be prepared to accept the verdicts. It said (at 367):
“Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.” [Citations omitted.]
Later (at 368), the Court pointed out that where the different verdicts represent “an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty” so that “the appellate court considers that intervention is necessary to prevent a possible injustice”, the appellate court will interfere. It stressed that there are no hard and fast rules.
With those principles in mind, I turn to examine the evidence. It is clear that the complainant’s evidence was at times quite vague. It certainly lacked particularity as to the times when the alleged offending occurred. However, the evidence on the first and third counts had a greater degree of particularity and detail than that concerning the second and fourth counts.
In respect of the first count, the complainant’s evidence was that the sexual misconduct occurred as she and her father were returning home after having had morning tea at her grandmother’s house on an occasion when others were present. Her grandmother was the appellant’s mother. The appellant said in cross-examination that he went on occasions with the complainant to his mother’s house for a cup of tea. He acknowledged that on one occasion others were present and that he and the complainant had walked home. He said that was the only visit when he had walked home with the complainant from his mother’s home. The complainant’s evidence was that she had been inside the abandoned church on one occasion only. She was able to describe the interior of the building and gave a reasonably detailed account of the course of offending. She had also described how the appellant had smoked a cigarette, dropped the butt to the ground and had used his foot to put it out. Her evidence that the appellant had dropped the cigarette to the floor received some support from the fact that a cigarette butt had been found on the floor of the building. The brand was the same as one which the appellant smoked on occasions. Although consistent with the complainant’s evidence, the finding of the cigarette butt was not corroboration. The trial judge fairly described it as a “straw in the wind”, warning the jury that it did not prove the offence. There was, however, sufficient evidence for the jury to convict the appellant.
Similarly, the evidence concerning the third count was quite detailed. The complainant described the act of masturbation between her and the appellant in some detail. There was quite sufficient evidence to justify a conviction.
By contrast, the evidence concerning the second count was especially vague and lacked certainty. It was her evidence that she had been woken up by the appellant whilst asleep in bed. She told the appellant that she was “tired”. The jury could well have interpreted that as meaning that she was drowsy. The complainant could not give any indication of the day on which the incident had occurred. She was unclear as to what had occurred. Examples of her uncertainty are the following:
“Q. What happened in the laundry.
A.I do know, but I keep forgetting. I think he was kneeling down and I was standing up or I was laying down and he was standing up – kneeling down. …
Q.What did he do.
A.I think he took my pants off, or I don’t know. He think he took my pants off, took my knickers off and left my T-shirt on. …
Q.What did he touch you with.
A.It is a hard question but I know what he touched me with, his rude spot.”
The complainant’s evidence on the fourth count was also unclear and lacked particularity. For example, when asked what had happened, she replied:
“I was in the bath. Mum – I think she was somewhere out the back or somewhere and Dad came in – no, she went out somewhere and Dad came into the bathroom and he put his finger up my rude spot.”
In addition, she was unsure how the digital penetration had occurred and for how long it had occurred. When asked when the incident had occurred, the complainant answered,
“I think morning or night time, I’m not sure. I forgot sorry”.
She did not know when it had happened in relation to the incident the subject of the first count. These examples have greater force when her evidence is read in its entirety. When the evidence on all four counts is contrasted, it is reasonable to conclude that the jury was satisfied that the prosecution had proved the first and third counts but had not proved the second and fourth counts. The trial judge had properly directed the jury to give separate consideration to each count in the information and to be satisfied that each count had been separately proved. The verdicts are consistent with that direction. Further, the fact that in the course of deliberations the jury had asked that the evidence as to the first and third counts be read to them suggests that the jury saw the first and third counts in a different light from the other two. I do not think that the different verdicts are inconsistent, nor do they affront either logic or commonsense. The verdicts are not unreasonable. When the evidence is examined, one can readily understand why the different verdicts were returned.
An inconsistent statement?
I turn to the evidence concerning the previous statement. The complainant attended school at Millicent. She knew a 12 year old girl whom I will call “TC”. On one occasion at the school during lunch time, the complainant had approached TC and spoken to her. TC made a statement to the police in which she recounted that conversation. At the trial, counsel agreed that her statement would be read to the jury. TC recounted the conversation in these terms:
“She started to talk to me. I can still remember exactly what she said. She said ‘Did you know my dad sexes me?’ I was shocked. She just came right out and said that. I said something like ‘That’s none of my business’. She then said ‘He sticks his willy in my bottom. You better not tell anybody’. I said ‘Okay’. Nothing more was said at that stage.”
TC reported the conversation to Mrs Burchard, the principal of the school. Mrs Burchard then spoke to the complainant who was later interviewed by officers of the Family and Youth Services Department and by the police. Plainly, Mrs Burchard had taken steps which led to these enquiries.
Mr Boucaut, who appeared for the appellant both at the trial and on this appeal, put the statement to the complainant in the course of his cross-examination of her. Given the submissions which were made on this appeal, it is necessary to set out the relevant parts of the cross-examination.
“Q.Did you speak to [TC] at some stage before Mrs Burchard spoke to you.
A.     Yes.
Q.     About what your dad did to you.
A.     Yes.
Q.Around about this time, were you having some problems with the other kids at school.
A.Yes.
…
Q.Is that why you spoke to [TC] about, and told her, some things your dad did to you.
A.Yes.
Q.Tell me if I am wrong but did you tell [TC] that your dad sexes you. I will just say that again, did you say to her something to this effect ‘Did you know my dad sexes me’. Did you say that to [TC].
A.I can’t remember.
Q.Did she say something to the effect ‘Well, that’s none of my business’, that’s what [TC] said to you.
A.Yes
Q.Do you remember anything like that.
A.I think so.
Q.And you said ‘He sticks his willy in my bottom’. ‘He sticks his willy in my bottom.’
A.I don’t understand, sorry.
Q.Did you say that to [TC].
A.No.
Q.Did you say something to the effect ‘He sticks his willy in my bottom, you better not tell anybody’.
A.No.
Q.How long after you spoke to [TC] did you speak to Mrs Burchard.
A.Well, she went and told Mrs Burchard.
Q.That’s what you understand, is it.
A.Yes.
Q.And Mrs Burchard spoke to you, what, a day or two later.”
[In the transcript, the name of TC was stated in full.]
The appellant asserts that the statement is inconsistent and relies on that inconsistency and the complainant’s denial that she made the statement.
The question whether the statement is inconsistent depends on at least two matters. The first is whether TC correctly recounted the conversation she had had with the complainant. Given the manner in which the statement of TC was proved, it cannot now be suggested that she has not correctly recounted the conversation. I have a real concern whether prosecution counsel gave complete consideration to the consequences of agreeing to admit the statement. While it is highly desirable to agree material, it is necessary to examine all aspects of it, particularly in a case such as this where the statement includes a conversation which might be in question. However, it is necessary now to proceed on the footing that TC correctly recounted the words which the complainant used.
The second question is what the complainant meant when she used the word “bottom”. In her evidence, this nine and a half year old complainant used the words “willy” and “rude spot” to describe the penis. She also used the words “rude spot” to describe her vagina. Other expressions she used to describe her vagina were “my little hole” and “my hole”. It is apparent from her evidence that she did not carefully distinguish between each of her private parts. For example, when she first used the words “my little hole”, she was asked, “what do you use your little hole for?”. She replied, “to do wee wees”. Later in her evidence, she was asked, “what do you use your rude spot for?”. She replied, “wee wees”. Not infrequently in her evidence, she described the act of intercourse by saying words to the effect “he put his rude spot on my rude spot”. There were many leading questions and counsel repeatedly referred to her vagina as her rude spot. During the complainant’s evidence the word “vagina” was not used and the word “bottom” was used only when Mr Boucaut put TC’s statement to the complainant in cross-examination.
It was open to the prosecution to have re-examined the complainant as to what she meant by the use of the word “bottom” and the expression “my dad sexes me”. That might have resolved any ambiguity. However, he did not. In the course of his closing address to the jury, counsel for the prosecution submitted that the word “bottom” when used by young children is not confined to the anus but may also be used as a generic term to describe the area of their genitals. In his closing address, Mr Boucaut referred to that submission. He did not refute it but confessed and avoided it. He submitted that there was nothing to suggest that the complainant used the word “bottom” to describe her vagina so that the prosecution submission should be rejected. His contentions on this appeal were to the same effect.
It is undesirable, if not misleading, to focus on the use of the word “bottom” because that is to ignore the fact that the gravamen of the complainant’s remarks to TC was that her father was sexually interfering with her. Her purpose was to inform TC of that fact. It must be remembered also that this was a brief conversation in the schoolyard. It was this conversation which ultimately led to the police investigation.
Mr Boucaut submitted that the words used described an act of anal intercourse. However, that is to overlook the gravamen of her statement to TC. In addition, it must be remembered that the words used by the complainant occur at the end of her remarks as they are related by TC. The complainant’s evidence was that she had experienced at least two forms of sexual misconduct. Whatever the complainant meant by the use of the word “bottom”, it did not include the act of masturbation. That only serves to highlight the undesirability of focussing too much on the use of the word “bottom”. Furthermore, the meaning of an ordinary word of the English language is not a question of law: Brutus v Cozens [1973] AC 854 per Lord Reid at 861. It was open to the jury to determine what the complainant meant when she used the word “bottom” having regard to the context in which it was used. The jurors were entitled to consider whether they were satisfied that the complainant’s use of the word was consistent with her evidence. The verdict on the first and third counts suggests that they were satisfied that it was. It only remains to add that, for the reasons already given, it is not appropriate to describe the remarks made by the complainant as a prior inconsistent statement. That is to put a gloss upon her words which, in the circumstances, cannot be justified.
Mr Boucaut also relied on the complainant’s denial that she said to TC, “he sticks his willy in my bottom”. I do not think that the denial has the significance for which Mr Boucaut contends. It is readily apparent that the complainant recalls this conversation with TC and she agreed that she had said to TC, “Did you know my dad sexes me?”. She also agreed that TC had gone and told Mrs Burchard, the school principal, about that conversation and Mrs Burchard spoke to her a day or two later. It is plain, therefore, that the complainant recalls the conversation and the general gravamen of that conversation. The only fact denied was the description of how her father had acted. I repeat, the significant fact is that the complainant spoke of sexual interference in her conversation with TC. The precise description of the interference is of lesser significance than the fact that the complaint had occurred. The fact that the complainant denied only some of the words which TC said were used in the conversation does not mean that the jury were not entitled to conclude that the complainant told TC that her father had sexually interfered with her.
For these reasons, I do not think that the complainant’s denial has the force for which Mr Boucaut contends. I have also considered whether, when viewed with the different verdicts, the so-called inconsistent statement and its denial should cause the verdicts to be regarded as unsafe or unsatisfactory. I cannot find any proper basis upon which that conclusion should be reached.

For these reasons, I would dismiss the appeal against the conviction.
The appeal against sentence
The trial judge sentenced the appellant to imprisonment for each of the two crimes of which he had been convicted. On the first count he sentenced the appellant to six years imprisonment and on the third count to 18 months imprisonment, making a total head sentence of seven and a half years. He ordered a non-parole period of five years. The appellant appeals against both the head sentence and the non-parole period alleging that they are manifestly excessive.
When ordering the sentence, the trial judge said, “On the evidence, these were not isolated acts.” That was plainly incorrect. The appellant had been convicted on two counts only. Only four incidents had been alleged in the evidence and there was nothing which suggested any other uncharged acts of sexual misconduct. The prosecution concedes that the judge sentenced on the basis of incorrect facts and that it falls to this Court to sentence the appellant afresh.
The appellant is aged 27 years. He was the complainant’s stepfather. The offending constitutes a gross breach of the trust and authority he had as a father.
Despite the conviction, the appellant continues to assert that he is innocent and that the complainant has lied. He expresses his disgust and abhorrence of sexual intercourse with a child. His wife totally supports his denial of the offending and believes that her daughter has lied. The allegations and subsequent conviction have had a markedly disruptive effect on the family. His wife, however, continues to support him.
The appellant has a previous conviction for indecent assault when aged 15 years. The circumstances of that offending which occurred 12 years ago are quite different and can be regarded as irrelevant.
The appellant had a difficult childhood. His stepfather was violent towards him. The family moved frequently from place to place following seasonal work. As an adolescent the appellant drank heavily. His life has been considerably more stable since meeting his de facto wife with whom he has lived for the past eight years.
I believe it is appropriate to order one sentence for this offending. For these reasons, I would allow the appeal, set aside the sentence imposed by the trial judge and would sentence the appellant to imprisonment for six years. I would order a non-parole period of four years.
WILLIAMS J I agree that the appeal against conviction should be dismissed and the appeal against sentence should be allowed for the reasons given by Debelle J. I agree with the new sentence and non-parole period which he has proposed.
BLEBY J I agree that the appeal against conviction should be dismissed. I also agree that the appeal against sentence should be allowed and that the sentence proposed by Debelle J should be imposed. I agree with Debelle J’s reasons in both appeals.

[2002] SASC 352

24 October 2002