R v PFD
[2001] VSCA 198
•31 October 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 134 of 2000
No. 218 of 2001
| THE QUEEN |
| v. |
| P.F.D. |
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JUDGES: | WINNEKE, P., BROOKING, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 October 2001 | |
DATE OF JUDGMENT: | 31 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 198 | |
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Criminal law – Conviction and sentence – Rape – Whether acts of physical assault preceding rape admissible – Whether judge erring in failing to discharge jury when evidence of uncharged acts inadvertently elicited in cross-examination – Judge’s directions in relation to evidence of physical assaults adequate in circumstances of case – Significance of failure to take exception – Circumstances in which Court will receive evidence of events occurring subsequent to sentence discussed – Applications dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr W.H.Morgan-Payler, Q.C. | K.Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr M.J.Croucher | Michael Brugman |
WINNEKE, P.:
In April 2000 a County Court jury at Geelong convicted the applicant of the anal rape of his wife, a young woman of Japanese origin (whom I will call "the complainant"). The conviction was recorded upon a "re-trial" of the applicant which had commenced almost immediately after a jury had been unable to agree upon their verdict at a former trial ("the first trial"). The rape was alleged to have occurred on 5 July 1998 in the bedroom of the house occupied by the applicant and the complainant in a small town near Geelong. It was said to have occurred shortly after a series of physical assaults had been committed by the applicant upon the complainant. These assaults, which were not in contest, were the subject of a count of recklessly causing serious injury, which was the first count on the presentment. The applicant had pleaded guilty in the absence of the jury to these assaults and the trial had proceeded solely on the count of rape which was the subject of count 2 on the presentment. The trial judge sentenced the applicant to 18 months on the first count, namely the reckless infliction of serious injury, and five years' imprisonment on the count of rape. His Honour directed that six months of the sentence imposed on count 1 be served cumulatively upon the sentence imposed for the rape, thus producing a total effective sentence of five-and-a-half years. He ordered the applicant to serve a minimum period of three-and-a-half years before becoming eligible for parole. The applicant had admitted a number of prior convictions between 1987 and 1996, many of which were for unlawful assaults and offensive behaviour.
The applicant seeks leave to appeal against the conviction recorded and the sentences imposed. Before turning to the grounds of appeal, it is desirable to refer briefly to the evidence which formed the basis of the jury's conviction.
The applicant and the complainant had been married for some two years before the events in question. The complainant was some eight years younger than the applicant and was only 18 years at the date of marriage. The marriage had produced a child, who was approximately 18 months old at the date of the assaults. It was apparent from the evidence that the applicant, who was at the time unemployed, was inclined to drink alcohol to excess and, when he did so, became a nasty drunk. This would seem to have been a precipitating factor of the events which commenced on the night of Saturday 4 July 1998.
The applicant on that evening had come home drunk. Nevertheless he continued to drink copious quantities of rum. Arguments developed between the applicant and the complainant, as a result of which the complainant left the applicant's presence and went outside to the front verandah, where she smoked a cigarette. Shortly afterwards the applicant invited her back into the house, saying that he would not "harm" her. As she entered the front door of the house the applicant pushed her in the back and punched her on the back of the head, as a result of which she fell to the tiled floor just inside the front door. Thereafter the applicant kicked her a number of times in the face and stamped on her head. Not surprisingly, the complainant, who suffered a black eye, blood nose and bruised ears, was crying. The applicant went into the kitchen where he used the telephone to call the police. Whether this was from a fit of remorse or not was never explained. He apparently said that he wished the police to come and collect him because he had assaulted his wife, and he then handed the phone to her. The complainant told the police that everything was "okay" and, as a consequence, the police did not arrive.
Shortly after that incident the complainant heard her child cry and went into his room and fed him. She then put the child back into the cot, at which time the applicant came into the room and took her by the hand. He led her into the back bedroom and told her to bend over the bed. The complainant became scared, commenced to cry and said words to the effect, "Please don't do it, please don't do it". Nevertheless he pushed her face forward onto the bed, pulled her pants down as well as his own, grabbed her from behind around her upper arms and shoulders, and then penetrated her anus with his penis. According to the complainant he was calling her all sorts of names like "bitch" and "slut" as he was raping her. She was unable to escape and was simply crying and pleading. The assault continued for some time which appeared to the complainant to be in the order of 10 to 15 minutes, following which the applicant simply stood up, dressed himself and left the room without saying a word. The complainant, in a state of fear, escaped out the side window of the room, climbed the side fence to the premises and ran to a telephone in a caravan park nearby. She called the police, who arrived shortly afterwards to find her curled up and sobbing in the base of the telephone box.
The police took the complainant back to the house, where they were confronted by the applicant, who - according to them - appeared to be drunk and in a belligerent mood. In their presence he again verbally abused the complainant, and the police took him out to the patrol wagon, where he continued to shout and punch the side of the van. The complainant made a brief statement to the female police constable, informing her of the earlier assaults and also of the fact that she had been raped anally by the applicant. However, once again, she told the police that she did not wish to pursue a formal complaint against her husband. During the course of her evidence she explained that that was due to a number of reasons - a combination of love and fear, a desire not to get her husband into trouble when he was the father of her young child, and a desire not to upset her mother-in-law, who was very ill with terminal cancer. Accordingly, no charges were laid at that time, although arrangements were made by the police for the child to be removed from the home to alternative accommodation with the complainant. Furthermore, an intervention order was procured, forbidding the applicant from approaching the complainant.
On the morning of 5 July 1998 the police had taken the complainant to the Geelong Hospital, where she was examined by a Dr O'Brien. She was still wearing the clothing (including the undergarments) which she had been wearing at the time when the assaults had occurred. The undergarments were taken by the police for testing. They were forwarded to the Victorian Forensic Science Centre, where samples were taken from semen stains found on them and submitted for DNA profiling. The profiling demonstrated that the semen stains belonged to the applicant. The examination by Dr O'Brien of the complainant revealed damage and tearing to the mucosa of the complainant's anus consistent with recent penetration by a blunt object such as a penis.
Despite the events of the early morning of 5 July 1998, and in contravention of the intervention order, it appears that cohabitation was resumed between the complainant and the applicant in or about August of that year. Nevertheless, in November 1998, the relationship was finally terminated, when the complainant took the child and left, because, as she said, "I realised that he wasn't going to change". She finally and formally lodged a complaint about the conduct of 5 July 1998 as a result of events which occurred in April 1999, when she attended the funeral of her mother-in-law who had succumbed to her terminal cancer. At that time the complainant was staying with her brother and sister. She said that the applicant had approached her and had a quiet conversation with her. She said that he was "really upset" with her and told her that if she was intending to leave him finally he would "come out with his shotgun and shoot [them] all".
Although the applicant gave no evidence at the trial, the complainant was vigorously cross-examined by counsel on his behalf. The thrust of the applicant's case - put in cross-examination - was that the rape which the complainant alleged had never occurred and that she was making it up as a justification for breaking the marriage and giving her grounds for divorce. She was asked about the phone call which had been made to the police following the assaults and her statement to the police over the telephone that there was no need for them to intervene. The following exchanges between counsel for the applicant and the complainant then occurred:
"Q:You have told the jury that you had concerns about the fact that he was still the father of your child?
A: Yes.
Q: That you loved him?
A: Yes.
Q:That you thought maybe he could get some help and this situation might get worked out in some way?
A: Yes.
Q: And that it might not happen again?
A: Yes.
Q:That's why you didn't want the police involved and you didn't want him arrested?
A:That's right.
Q:But you do say that the straw that broke the camel's back on that night is when you say that he raped you. As a result of that you did go and see the police?
A:Yes.
Q:You did contact the police?
A:I did.
Q:You'd made up your mind at that stage that one way or the other this man was going to be out of your life. Isn't that right?
A:He has been mentally and physically abusive but it was never as bad as this incident.
...
Q:You wanted him out of your life? You wanted him arrested? Isn't that right? Isn't that why you called the police?
A:I wanted to take him out of the house. I ... didn't want him to be out of my life but he made me call the police because of what he's done to me in the bedroom. ...
Q:Because of that?
A:Because he never betrayed me in that way. He may have assaulted me but he never betrayed me in that way and I felt - that scared me."
At another point during the cross-examination the following questions were asked and answers given:
"Q: Do you say that you did suffer injury to your lips or you didn't?
A:I'm sorry but I'm not sure because this kind of abuse, not as bad but it had happened.
Q:I'm not asking you about other occasions which may or may not have happened, I'm asking you about ... this occasion?
A:I don't understand.
Q:When you say you're not, whether or not you suffered injury to your lips although you do recall saying that that had happened on a previous occasion?
A:Yes I do, but I'm not too sure."
The questions and answers to which I have referred in the preceding paragraph were the subject of what seems to me to have been a "luke-warm application" to discharge the jury. Trial counsel contended that the answers were non-responsive and designed to show that there had been assaults, other than those which had occurred in the early morning of 5 July 1998, which were not part of the Crown case. These answers, so counsel submitted, were irrelevant and demonstrated a propensity on the part of the applicant to commit crimes other than those charged. Counsel said:
"... I would ask Your Honour to consider a discharge of this jury. The alternative to that, and it's not a very good alternative, is that they be directed in some way as to how they are to approach not only that evidence that's come out in the box, but also the matters which have been led by the Crown leading up to the allegation they're being asked to determine."
In so far as this application was a request to discharge the jury, his Honour refused it. He said:
" ... I have no hesitation in saying that I do not believe there is sufficient to discharge the jury on the answers that have fallen from the witness in this matter. It is a matter that can be dealt with again when the jury are being charged by me that the assaults, particularly of the night, and they are the only ones I'll be specifically referring to in the charge, with perhaps a sentence on any other matter of a similar kind is simply in context. ... Similar type responses were I suggest innocently given by (the complainant). I don't think that she is of the intellect to understand the system to be deliberately trying to ... I suppose one, when questioning (the complainant) could couch the question in such a way as to try and avoid that sort of response but I certainly do not believe it is proper that I discharge the jury for the responses she has given at this time."
Grounds of Appeal
There were six grounds of appeal attached to the notice of application for leave to appeal against conviction. Grounds 1 and 6 were not pursued during the course of the hearing of this application. Ground 5 was amended with the leave of the Registrar prior to hearing. As amended, the relevant grounds read as follows:
"2.That the learned judge erred in that he allowed evidence to be led as part of the Crown case that the facts and circumstances alleged to constitute the offence of causing serious injury (the charged act) to which I had pleaded guilty, but evidence of which plea was not led before the jury.
3.That the learned judge erred in that he refused to direct the jury at the time that the evidence was led in relation to the charged act as to the permissible use they might make of that evidence.
4.That the learned judge erred in refusing an application to discharge the jury made as a consequence of uncharged acts not relied upon by the Crown being introduced into evidence during cross-examination.
5.That the learned judge erred in that he did not adequately or at all address the jury in the course of his charge as to the permissible or impermissible use they might make of the evidence in relation to the charged act and the uncharged acts and in particular he erred:
(a)in referring to 'what (the complainant) says of (the applicant) in terms of his mood swing, his fluctuations of mood, his inconsistency when he is intoxicated and being assaulted';
(b) in failing to direct to the effect that the evidence of previous and subsequent acts of violence must be disregarded;
(c) in failing to direct to the effect that the jury:
(i) must not substitute evidence of physical assault on the night with evidence of the sexual assault; and
(ii) must not reason that because the applicant had physically assaulted the complainant earlier that night he was the kind of person likely to have sexually assaulted her."
Failure to Exclude the Evidence of Physical Assaults - Ground 2
I turn to ground 2, broadly described as the failure to exclude the evidence of physical assaults. As I have previously indicated, the Crown had alleged as count 1 on the presentment an offence of recklessly causing serious injury to the complainant. This offence comprised the physical assault of the complainant by the applicant in the early hours of the morning of 5 July 1998, but preceding the events constituting the rape alleged in count 2. At the first trial of the applicant (at the conclusion of which the jury had disagreed), his trial counsel had indicated that the applicant was prepared to plead guilty to count 1 but requested that the plea be taken and accepted in the absence of the jury. Thereafter counsel contended that the judge should exclude the evidence of the events comprising the physical assaults from the evidence to be led against the applicant in respect of the anal rape; and so contended on the basis that such evidence had little probative value but much prejudicial content and ought to be excluded in the exercise of the judge's discretion. This appeared to be the basis upon which the judge was asked to rule on the matter, although it seems to me that the admissibility of the evidence fell to be considered pursuant to s.398A of the Crimes Act 1958. Admissibility of evidence under that section is a question of law and it is for the judge to decide whether it is just to admit the evidence despite any prejudicial effect it might have on the accused. It is for the Crown to satisfy the judge that the evidence is admissible in contradistinction to the exercise of a "Christie[1] discretion". Little, I think, turns on the matter because of the view which I have formed of the probative value of the evidence. The judge declined to exclude the evidence and the first trial proceeded with the Crown leading in evidence the circumstances of the physical assaults perpetrated by the applicant upon the complainant preceding and leading up to the rape alleged in count 2. After the jury had disagreed, and the re-trial commenced, no further application to exclude that evidence was made - counsel no doubt accepting the ruling which had been made on the first trial. Counsel did, however, contend, during the course of the re-trial, that when such evidence was led, his Honour should give the jury a direction as to the purpose for which it was admitted and the permissible use which the jury could make of it.
[1]R.v.Christie [1914] A.C.545.
On the hearing of this application Mr Croucher, who appeared for the applicant, did not address any oral argument to the Court in respect of this ground or in respect of ground 4. He told the Court that he was content to rely upon his written submissions. In those submissions he contended that the evidence of the physical assaults should have been excluded by the judge. Again no argument was raised on the basis of s.398A of the Crimes Act. He argued that such evidence was "apt to be misused" by the jury in considering the count of rape, that no sufficient directions could be given to guard against misuse of the evidence, and that it was unnecessary in the circumstances for the Crown to lead it. He submitted that the fact that the real issue in the case was not one "of consent", but was whether intercourse had occurred at all, rendered the evidence unnecessary and prejudicial; and that the prejudice so heavily outweighed any probative value that his Honour was in error in allowing it to be led. Although trial counsel had not sought to have the evidence excluded on the grounds that it was irrelevant, Mr Croucher went so far as to submit that the evidence constituted nothing more than "background" and should have been regarded as inadmissible. In support of that proposition he relied upon the statements of Callinan, J. in Gibb v. R.[2], where his Honour had said:
"I do not accept that non-specific highly prejudicial evidence may be led by the prosecution, and juries told that it might provide 'part of the essential background' against which the other evidence is to be evaluated."
[2](1998) 194 C.L.R.106 at [181].
For my own part I do not accept that the impugned evidence was irrelevant or lacking in probative value. Nor can I accept that his Honour was in error in failing to exclude it. The evidence of the physical assaults in the early hours of the morning of 5 July 1998, and preceding the offence of rape alleged in count 2, was, in my view, relevant to proof of the offence charged in that count. It is of course obvious that, when the judge was asked to exclude the evidence, he was not in a position to know what course the accused was going to take at the trial. Notwithstanding that the applicant gave no evidence at the first trial, the judge nevertheless remained in ignorance as to what course would be followed by the applicant at the re-trial, and more particularly what course would be followed in the event that this evidence was excluded. That, however, in my opinion, is of little consequence. The nature of the applicant's conduct, involving as it did the unpredictable aggression and hostility towards his wife, was not only evidence of the relationship which existed between them and, as such, logically probative of the events which the complainant said had thereafter occurred - namely, the act of anal and non-consensual penetration - but was also relevant to prove that the conduct was non-consensual and that the applicant was aware that that was so. In this respect, it is pertinent to note that, although it was the thrust of the defence case made through cross-examination that no act of sexual penetration had occurred, counsel did put to the complainant that acts of anal intercourse had not infrequently taken place between the parties and had in fact occurred some two days before the incident in question. Although these questions were asked for the purpose of specifically rebutting the significance of Dr O'Brien's evidence that she had found "recent" damage to the complainant's anal passage, they were nevertheless capable of raising in the jury's mind the suggestion that, even if they found the charged act had occurred, it was consensual. Indeed, the jury, after retiring, asked the judge to re-direct on the issue of consent.
It is not the law that relevant evidence is excluded simply because it demonstrates, or has the capacity to demonstrate, that the accused has committed other crimes or has engaged in discreditable conduct on other occasions, or indeed is evidence of conduct which tends to show that he has a propensity to engage in crimes of the type with which he is charged. Where the accused and the victim are in an ongoing relationship with each other, evidence of the nature of that relationship will frequently be relevant to the issues in dispute for the purposes of permitting logical inferences to be drawn bearing upon those issues (Wilson v. R.[3]; R. v. Anderson[4] and the cases there cited). The evidence in this case was led, not to show that the accused man had a propensity to commit acts of anal rape, but to prove, in the event that the jury found that intercourse had occurred, that it was non-consensual and that the applicant was aware that it was non-consensual. In other words it was led, in conformity with established principle, on the basis that it tended to establish matters relevant to the relationship between the applicant and the complainant (cf. S. v. R.[5]; R. v. Ritter[6]). No doubt, if the fact was that the relationship between the applicant and the complainant had at all times been a loving and caring one, evidence of that relationship could have been led by the applicant as evidence tending to prove the improbability of a rape of the type alleged in count 2 having occurred. In my opinion, it would have been contrary to common sense for the jury to have been asked to consider the charge of "anal rape" in a vacuum and without the assistance of knowing the relevant relationship existing between the applicant and the complainant on that night. This was the view which the judge took, and in my view he was correct to do so. It was, therefore, just to admit the evidence despite any prejudice it might have had on the applicant. I would, accordingly, reject ground 2.
Failure to Discharge the Jury Following Evidence of History of Violence - Ground 4
[3](1970) 123 C.L.R.334 at 339 per Barwick, C.J.; 334 per Menzies, J.
[4][2001] 1 V.R.1 at [12]-[14].
[5](1989) 168 C.L.R.266 at 279 per Toohey, J.
[6]Unreported, Court of Criminal Appeal (N.S.W.) 31 August 1995 per Gleeson, C.J. at 7-10.
I have previously referred in some little detail to certain evidence which was given by the complainant during the course of her cross-examination by the applicant's trial counsel. I have also noted that, following the giving of this evidence, trial counsel made an application (which I have described as "luke-warm") that the jury should be discharged. Trial counsel had contended that this evidence had "cumulated upon" the prejudice flowing to the applicant from the evidence, permitted to be given, of the physical assaults which had occurred earlier in the morning of 5 July. Counsel contended that the evidence to which he referred was "non-responsive" and that "it's not only alleged now that there is an assault occurring prior to the allegation, but that this is part of a course of conduct over a period of time". Counsel contended that the evidence was "not part of the Crown case" and that the judge should "consider a discharge of this jury".
I do not think it can be said that in the context of this case the trial judge was in error in refusing to discharge the jury having regard to the nature of the so-called offending material given in evidence by the complainant, or having regard to the manner in which that material was elicited. It is true that the case against the applicant was conducted on the basis that the only evidence of relationship between the applicant and complainant comprising physical aspects of abuse should be limited to the assaults which had been committed in the early hours of the morning of 5 July 1998, and that the answers given by the complainant to the questions asked in cross-examination might have raised, in the mind of the jury, a belief that there had been other acts of physical abuse during the course of the marriage. However, it seems to me that the answers given can scarcely be said to have been "non-responsive" when the applicant's trial counsel was inviting the complainant to say whether the events which occurred on the morning of 5 July 1998 were "the straw that broke the camel's back"; and to have done so in the context of putting the suggestion that the complainant had made up her mind at that stage that "one way or the other this man was going to be out of your life". Furthermore, it seems to me that the nature of the material elicited was of little consequence, having regard to the entire content of the evidence before the jury, from which they could clearly infer that the applicant was a person who imbibed to excess, became belligerent when drunk, and that arguments had not infrequently ensued between them. It seems to me to have been virtually inevitable that counsel, when cross-examining the complainant about matters relevant to their relationship, was going to extract material of similar kind. Mr Croucher, in his written submissions to this Court, contended that the question must be determined on the basis that it had been agreed that only the evidence of the physical assaults occurring on 5 July 1998 would be led and that, against that background, the answers of the complainant had occasioned a miscarriage of justice. He referred to authorities such as Maric v. R.[7] and Crofts v. R.[8] One merely has to look at the circumstances which arose in those cases to see how different they are from the circumstances which arose in this case.
[7](1978) 52 A.L.J.R.631 at 635.
[8](1996) 186 C.L.R.427 at 441.
In any criminal trial, and in particular in a trial of this nature, it can be accepted that there is always the possibility that potentially prejudicial evidence may inadvertently be given. Where that occurs it is a matter for the trial judge to determine whether the material inadvertently elicited should lead to a discharge of the jury. It is acknowledged that the trial judge's discretion is to be exercised on the basis of whether or not the discharge of the jury is called for as a "matter of necessity" having regard to the nature of the prejudicial material which has inadvertently been put before the jury and whether the prejudice flowing from it has rendered the trial incurably unfair (R. v. Boland[9]; Crofts v. R. (supra)).
[9][1974] V.R.849 at 866.
In my view the trial judge was entitled to exercise the discretion as he did. The impugned evidence was of very small prejudice in the light of the evidence given and the issues contested at this trial. Indeed, in my view, it can fairly be said that it was inconsequential. In the context of the admissible evidence of the relationship which existed between the parties on this night and early morning of 5 July 1998, it cannot be said that the evidence elicited caused a miscarriage of the trial. It could, I think, have had no relevant impact upon the jury's consideration; and, quite apart from the nature of the material, the circumstances in which it was elicited and the stage at which it was elicited entitled the judge to conclude, in the fair exercise of his discretion, that the jury should not be discharged as a consequence of it. I would, accordingly, reject this ground of appeal.
Grounds 3 and 5 - Directions in Relation to Physical Assaults
Mr Croucher submitted that the directions by the judge as to the use which the jury could and should make of the physical assaults committed by the applicant upon the complainant were inadequate, and that he should have directed them, both at the time when the evidence was given and in his charge, that they should not substitute the evidence of physical assaults for evidence of the rape and should not reason that because the applicant had physically assaulted the complainant earlier that night he was the kind of person likely to have raped her. He contended that a failure to give such directions was a failure to comply with statements made by this Court in such cases as R. v. Cogley[10], R. v. Loguancio[11] and R. v. Mala[12].
[10][1999] 3 V.R.366 at [26].
[11][2000] 1 V.R.235 at [7]-[8] and [15].
[12]Unreported, Court of Appeal (Vic.) 27 November 1997 at pp.8-9 and 13-15.
What the judge did say in respect of the evidence of the physical assault upon the complainant was as follows:
"Let me say as well you might recall ... [the complainant] gave evidence of an assault. The assault that occurred, I will call it if you like, the first event, is led in evidence as being in context of what happened on that night. That that event occurred does not mean to say that the rape event occurred, the second event. It would have been a nonsense for you not to have heard what occurred on the night and there is, as you heard, and conceded by counsel, no dispute about the unpleasantness of the first event. In fact, the first event came to a conclusion, there was a break ... . That event was finished and completed, that's the first event and then the second event occurred.
The fact that the first event occurred is not an element of the charge of rape. But so that you are aware of the entire events of the evening and the state of mind of the victim and what she says of the accused in terms of his mood swing, his fluctuations of mood, his inconsistency when he is intoxicated and being assaulted (sic). That is a separate event and not to be treated as the rape event. I've said that two or three times."
These directions were almost identical to directions which the judge had given to the jury in the first trial, which of course involved the same counsel. No exception was taken by the applicant's trial counsel to the directions given in that form. Although no specific direction was given in respect of the evidence of physical acts of violence committed by the applicant on "other occasions" (if that is what it was), no direction was sought and no exception taken to the charge on that point. Perhaps that is understandable because, having regard to the vagueness of such evidence, it might well have been considered imprudent to have emphasised the brief references to such acts.
The adequacy of a judge's directions must be looked at in the circumstances of the particular case and the issues which are being fought in that case. Charges are to be judged not so much by reference to charges in other cases as by reference to the way in which they would have been understood by the jury in the instant case (cf. R. v. Loguancio (supra)). In any case the question for the appellate court is whether or not the directions were adequate to secure a fair trial. Where the directions are seen by counsel appearing at the trial to have been adequate, in the sense that no exception was taken to them, it can usually be assumed (particularly where counsel are experienced in the criminal process) that no unfairness can be discerned by those immersed in the atmosphere of the trial. It is of course true that the failure of counsel to object is not in all cases fatal to the success of an application for leave to appeal, but the fact that exception is not taken is, for the reasons already given, significant; a fact which is well established in this State. (R. v. Clarke & Johnston[13]; R. v. Smart[14]; R. v. Gallagher[15]; R. v. Wright[16].)
[13][1986] V.R.661-2.
[14][1983] 1 V.R.265 at 297.
[15][1998] 2 V.R.671 at 681.
[16][1999] 3 V.R.355 at 360-361.
In any event, it seems to me that what the judge did tell the jury was sufficient to meet the circumstances of the case before him. This was not a case like Gibb v. R. (supra) or R. v. Loguancio (supra), where the Crown had led evidence of uncharged acts of a non-specific kind similar in character to the acts with which the accused had been charged; and where, therefore, the risk of an impermissible reasoning process was high. In this case the evidence of physical abuse was extremely specific and confined, and of a nature unlikely to promote propensity reasoning, having regard to the discrete differences which existed between the uncharged and the charged conduct. The directions given by his Honour, to which I have earlier referred, were designed to convey and would, I think, have conveyed to the jury that they could not impermissibly reason towards guilt from the physical abuse which had occurred shortly before the alleged rape. His Honour was at pains to point out to the jury that the evidence of physical assault was quite separate from the charged act of anal rape and was not to be regarded by them as an ingredient of the crime of rape and should be used by them only for the purpose of providing a contextual setting in evaluating the states of mind of the applicant and the victim. In the circumstances of this case, those directions were, I think, sufficient to convey to the jury, and would have been understood by the jury as meaning, that they could not substitute the acts of physical assault for the act with which the applicant was charged. The effect of his Honour's direction, as it seems to me, was calculated to remove or set apart the earlier acts of violence from the jury's consideration of the act charged, save and except for the very limited purpose explained to them. Nor, for the reasons already adverted to, did the failure to give an express warning against "propensity reasoning" cause the trial to miscarry. There was nothing about the circumstances in this case which raised the prospect that the jury - in the face of the directions which were given - would impermissibly reason, from the physical assaults, that the applicant was the sort of person who would anally rape his wife. As I have said, the fact that no exception was taken to the charge indicates that counsel did not regard the directions as impacting upon the fair trial of the applicant. Furthermore, because the evidence of physical abuse was admitted as evidence of relationship and was discretely different from the charged conduct, I cannot agree that the judge was bound to tell the jury, at the time the evidence was led, of the purposes for which it could and could not be used. Such a course, so far as I am aware, is not a universal practice in this State. Much will depend upon the nature and extent of the evidence and its capacity to provoke impermissible propensity reasoning.
Even if there were imperfections in the charge of the nature contended for by applicant's counsel, there has, in my view, been no substantial miscarriage of justice. The forensic evidence given by Dr O'Brien and the members of the Forensic Science Centre clearly supported the complainant's evidence that there had been sexual contact between her and the applicant on this night. The applicant declined to give any evidence, and in the circumstances the case against him, at least on the issue which was left for the jury's consideration, was overwhelming, and any imperfection in the directions to which I have referred could not be said to have deprived the applicant of a fair chance of acquittal. Accordingly, I would reject grounds 3 and 5 of the application.
Sentence
The only basis upon which the application for leave to appeal against sentence was seriously argued was that the sentences imposed could be seen to be excessive in the light of events which had occurred subsequent to sentence; which events demonstrated that the impact of the applicant's psychiatric illness and, more particularly, the effect of that impact upon the hardship faced by the applicant in prison had been greater than could have been anticipated by the judge. Counsel for the applicant has sought to tender an affidavit from the applicant's solicitor setting out the circumstances of the applicant's continued incarceration in the psychiatric unit at Port Phillip Prison. Annexed to the affidavit is a report of Dr Walton, a forensic psychiatrist, who apparently saw the applicant on 25 July this year and formed the opinion that he was suffering from a significant depressive disorder. Dr Walton expressed the opinion that the applicant requires ongoing psychiatric supervision but concluded that he was not in a position to state that the applicant was "in the grips of a depressive illness" at the time of the incident and that therefore "mental illness considerations would not seem to have an immediate impact upon sentencing". The doctor emphasised that the applicant did require "ongoing alcohol related rehabilitation".
The circumstances in which this Court will receive and act upon evidence of events which have occurred subsequent to sentence are well established. They have been set out in such cases as R. v. Rostom[17] and R. v. Babic[18]. Those authorities make it clear that the suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is normally a matter for consideration by the Executive in the exercise of its prerogative of mercy and not by the appellate court. It is only permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence, but not then fully appreciated or understood. It seems to me that those criteria have not been met in this case. At the time of sentence the judge had before him a full report from Mr Bernard Healey, a forensic psychologist. Not only were the findings in that report similar to those which are expressed in the report of Dr Walton, but it is also clear from his Honour's sentencing remarks that he took full account of the applicant's psychological and depressive state emanating largely from his alcoholism. His Honour referred in detail to the report of Mr Healey, the contents of which he described as "very distressing", and noted that the applicant was being assessed in the psychiatric unit of the prison and placed on anti-depressant medication. It is clear that the applicant's depressive illness figured largely in the sentence which his Honour imposed for the rape, which in the circumstances is an extremely moderate one. There is nothing which I can see in Dr Walton's report which suggests that his Honour has not given full effect to, or has under-estimated, the extent of the applicant's psychological condition as it existed at the date of sentence and which appears to have continued. There is nothing to be found in his Honour's sentencing remarks which indicates that he regarded the applicant's depressive condition as one which would be likely to resolve itself within a short period of time or which would indicate that he has not taken full account of its potential future course. In those circumstances, this Court cannot accept into evidence the affidavit material which is now put before us for the purposes of showing that the sentence imposed below is excessive. There is nothing else about his Honour's sentencing of the applicant which would demonstrate to me that the
sentences imposed are otherwise than adequate for the crimes committed, and accordingly I would reject the application for leave to appeal against sentence.
[17][1996] 2 V.R.97.
[18][1998] 2 V.R.79.
In the result, the applications for leave to appeal against conviction and sentence should be dismissed.
BROOKING, J.A.:
I agree.
O'BRYAN, A.J.A.:
I agree that each application should be dismissed, for the reasons given by the President.
WINNEKE, P.:
The formal order of the Court is that the applications for leave to appeal against conviction and sentence are dismissed.
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