R v Osborne
[2009] VSCA 88
•4 May 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 542 of 2008
| THE QUEEN |
| v |
| JOHN PHILIP OSBORNE |
---
JUDGES: | VINCENT and WEINBERG JJA and COGHLAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 May 2009 | |
DATE OF JUDGMENT: | 4 May 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 88 | |
---
CRIMINAL LAW – Conviction – Two complainants alleged sexual abuse over lengthy period – Counts framed in presentment on ‘between dates’ basis – Counts left to jury as ‘first occasion’ counts – Complainants unable to differentiate between ‘first occasion’ and any other occasion on which alleged abuse occurred – Convictions quashed on basis of R v DWB [2008] VSCA 223 – Uncharged acts – Need for direction that uncharged acts be proved beyond reasonable doubt – Failure to give such direction, where uncharged acts relied upon, leads to quashing of conviction
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr T Kassimatis | De Marco Lawyers |
VINCENT JA:
I will invite Justice Weinberg to deliver the judgment of the Court.
WEINBERG JA:
After a trial in the County Court, the applicant was convicted on seven counts of having committed an indecent act with or in the presence of a child under the age of 16 (counts 1, 2, 3, 4, 5, 8 and 15). He was presented on five further such counts (counts 6, 7, 9, 12 and 14), two counts of sexual penetration (counts 11 and 13) and one count of rape (count 10), but was acquitted on these counts.
The applicant was sentenced to a total term of three years and nine months' imprisonment. A non-parole period of two years was fixed. He now seeks leave to appeal against conviction.
The facts may be briefly stated. There were two complainants, both sisters. Counts 1, 2, 3, 4 and 5 involved CW, the younger of those girls, who was born in April 1990. Counts 8 and 15 involved SW, the older sister, who was born in August 1988. The offences all took place between 1999 and 2004.
The applicant was well known to both girls. He was a friend of their father. They knew each other through the scouting movement. The offences occurred at different locations, including the applicant's home, the complainants' home, while on a camping trip on the Murray River, and at Telstra Dome. Broadly speaking, the applicant was regularly entrusted with the care of the girls by their father. He was alleged to have dealt with them indecently in a variety of different ways and on numerous occasions.
The case against the applicant was based largely, though not exclusively, upon the evidence of the two complainants. The applicant did not give evidence and did not call any witnesses on his behalf. Four of the counts, namely, counts 2, 3, 8 and 15, alleged conduct between dates that extended over a number of years. The Crown case in relation to those counts was put on the basis that, during the lengthy period specified, the applicant committed indecent acts with CW (counts 2 and 3) and also with SW (counts 8 and 15). The prosecutor invited the jury to find the applicant guilty on a 'first occasion' basis, that being the offence constituted by each ‘between dates’ count. In other words, the Crown alleged a series of essentially repetitive offences throughout the period in question, and invited the jury to convict on the basis of the first of those to be committed within that period.
Regrettably for the Crown, the evidence given by each complainant provided no basis upon which the charged act could be distinguished from the uncharged acts contained within each count. The prosecutor was left with no choice but to invite the jury to conclude that, as there must have been an occasion on which the offending commenced, that was the offence encompassed by each of these four counts.
Put another way, the prosecutor invited the jury to conclude that during the period of the alleged offending, there must logically have been a 'first occasion'. However, neither complainant gave evidence that differentiated the first occasion on which she was indecently touched from any of the many other occasions that she described within the relevant time frame. Nor was there any circumstantial evidence that would have allowed that first occasion to be identified.
In the end, the jury were invited by the prosecutor, and permitted by the judge, to convict the applicant on the ‘first occasion’ counts without there being any evidence to support the finding that the particular offence the subject of those counts had been committed.
There are limitations upon the use that can be made of ‘first occasion’ counts. The matter was recently considered by this Court in R v DWB,[1] a case decided well after the applicant's trial and conviction. Before this Court, the Crown properly conceded that, in the face of that decision, and having regard to the matters set out in [7] to [9] above, the convictions on counts 2, 3, 8 and 15 could not stand. As in DWB, the convictions on those counts must be quashed. The applicant is entitled to judgment and verdict of acquittal in relation to each of them.
[1][2008] VSCA 223, [37].
That leaves counts 1, 4 and 5 to be considered. The applicant submitted that the convictions upon those counts should also be quashed. He contended that the trial judge had failed adequately to direct the jury as to ‘relationship evidence’ and ‘evidence of uncharged acts’.
The argument went as follows. The judge directed the jury that this evidence had been led merely to establish the context in which it was suggested that the charged acts had occurred. It was admitted solely, as his Honour instructed the jury, to establish the relationship between the applicant and the two complainants. The jury were given ‘separate consideration’ directions and ‘propensity warnings’, and no complaint was made as to their adequacy. The point taken before this Court was that his Honour failed to direct the jury that before they could consider evidence of this kind, and particularly the uncharged acts, those acts had to be proved beyond reasonable doubt.
In considering this particular ground of appeal, it is necessary to say something more about the facts regarding each of counts 1, 4 and 5. CW was the complainant in relation to each of these counts.
As regards count 1, the complainant said that when she was about nine years of age, she had on a particular occasion stayed over at the applicant's house. She said:
I remember going to bed and having John come into the room naked and putting his hand under the blanket and touching me on the hip.
She said that she believed that the applicant had been trying to roll her over while she was lying facing the wall.
It is important to note that, with regard to count 1, there were no uncharged acts as such.
Turning to count 4, the complainant said that some years later, when she was in year 7 (which would have been 2003), the applicant had helped her with a school assignment regarding breast cancer. She said that he attempted to show her how to check for the disease. He had her sit on his lap and removed her top. He then touched her breast.
Once again, it is significant that, viewed in isolation, the evidence regarding this count did not entail any consideration by the jury of uncharged acts.
Finally, count 5 concerned an incident said to have occurred in either December 2003 or January 2004. The applicant had taken the complainant camping on the Murray river. He attempted to teach her to swim. He did so by putting her in the water, walking backwards and forcing her to swim to him. She claimed that he caught her by grabbing her ‘around the chest and the crotch’.
The actual offence contained within count 5 occurred on the second day, when the applicant asked the complainant whether she had put sunscreen on. When she said no, he ‘grabbed her’ and took her into a tent. He made her lie down, removed her bikini top and board shorts, and applied sunscreen to her body. He put the sunscreen over her bottom and her breasts.
In relation to count 5, evidence regarding the indecent touching in the water during the course of the 'swimming lessons' was led as an uncharged act. Indeed, the jury were told that although the complainant’s description suggested the commission of an offence, it could not be the subject of a criminal charge in Victoria, the Murray River being located within New South Wales. It follows that count 5 presented a classic example of an uncharged act being used to provide evidence of ‘context and relationship’, and to support the actual offence charged.
It now seems clear that when a jury is directed as to the use that they can make of uncharged acts, they must be told that they should not act upon such evidence unless satisfied beyond reasonable doubt that those acts occurred.[2] That was not understood to be the law at the time of this trial. However, the High Court has now spoken. It must be accepted that his Honour's charge has turned out to be deficient in this regard.
[2]HML v The Queen (2008) 235 CLR 334 and R v Sadler [2008] VSCA 198.
It follows that the conviction on count 5 must be quashed. It does not follow, however, that the convictions on counts 1 and 4 are also to be set aside. As we have previously noted, the offences alleged in those counts stood alone, without any recourse by the jury to uncharged acts. Indeed, the jury were told, in the clearest possible terms, that they had to consider each count separately and base their verdict solely upon the evidence admissible in relation to that count.
The end result is as follows. The convictions on counts 2, 3, 8 and 15 must be quashed, and a judgment and verdict of acquittal entered in relation to each of those counts. The conviction on count 5 must also be quashed. The sentence imposed below in relation to count 5 was made wholly concurrent with the sentence imposed on count 1. That, of itself, provides a powerful argument for not ordering a retrial on count 5. However, in addition, the Crown effectively conceded that if the conviction on count 5 were to be quashed, it would not be appropriate, in the particular circumstances of this case, to order a new trial in relation to that count. We will therefore direct an acquittal on count 5 as well.
Section 569(1) of the Crimes Act1958 requires this Court to re-sentence the applicant in circumstances such as those which now exist. In that respect, we have had regard to the material placed before us regarding the applicant's attempts at rehabilitation since he was imprisoned. We have also had regard to the effect of his incarceration upon his son, who, sadly, has been finding the burden of his father’s imprisonment to be particularly onerous.
In our view, the applicant should be re-sentenced as follows:
count 1 - a term of 18 months' imprisonment;
count 4 - a term of 18 months' imprisonment.
We propose to direct that three months of the term imposed on count 4 be made concurrent with the term imposed on count 1. It would follow that the total effective sentence would be 33 months' imprisonment. We would fix a non-parole period of 18 months.
VINCENT JA:
The orders of the Court are:
1. The application for leave to appeal against conviction with respect to counts 2, 3, 5, 8 and 15 is allowed.
2. The appeal is treated as having been instituted and heard instanter and is allowed.
3. The convictions on counts 2, 3, 5, 8 and 15 are quashed and verdicts of acquittal entered.
4. Pursuant to s 569(1) of the Crimes Act, the sentences imposed in the court below are set aside.
5. The applicant is re-sentenced on each of counts 1 and 4 to a term of imprisonment for 18 months, the service of three months of the sentence imposed on count 4 to be concurrent with that imposed on count 1.
6. These orders make for a total effective sentence of 33 months, in respect of which a non-parole period of 18 months is fixed.
7. It is declared that the applicant has served a period of 459 days which is to be reckoned as having been served under the sentence hereby imposed and it is directed that this declaration and its details be entered in the records of the Court.
8. The declaration made in the court below with respect to the applicant having been sentenced as a serious sexual offender is set aside.
9. It is noted that the applicant has been sentenced for two Class 2 offences, which are registrable under the sexual offender registration provisions, and accordingly has a period of 15 years of notification.
---
12
4
0