R v Rainsford
[2000] VSCA 157
•1 August 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 125 of 1999
| THE QUEEN |
| v. |
| JAMES ERNEST RAINSFORD |
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JUDGES: | WINNEKE, P., BROOKING and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 August 2000 | |
DATE OF JUDGMENT: | 1 August 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 157 | |
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Criminal law - Appeals against conviction and sentence – Counts involving offences of a sexual nature against different complainants – Grounds contending inappropriate failure to sever counts, wrongly admitting identification evidence and failure to prove “wilful exposure at common law” – Applicant appearing in person – Application for leave to appeal against convictions and sentence refused.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. G.G. Hicks | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | In person |
WINNEKE, P. (delivering the judgment of the Court):
The applicant, James Ernest Rainsford, who is now aged 41, pleaded not guilty in March 1999 in the County Court to two counts of common law exposure and one count of assault with intent to rape. All of these offences were alleged to have occurred on the same day, 15 July 1998, and all involved episodes either on trains in this State or on railway stations that serve those trains. The two counts of exposure are common law offences for which the penalty is at large. The offence of assault with intent to rape which is the subject of count 2 carried a maximum penalty of 10 years at the relevant time. His Honour directed that counts 1 and 2 (one count of common law exposure and the offence of assault with intent to rape) be tried separately from count 3.
The first two counts arose out of events occurring in the early morning of 15 July 1998 on a train from Flinders Street to Tottenham. The allegation in respect of count 1 was that the applicant had masturbated in front of a woman passenger on the Tottenham train. The woman passenger alighted at Tottenham and security cameras demonstrated that the applicant had alighted from the train at that station, where he subsequently allegedly assaulted another young girl aged 16 in another part of the Tottenham station. The woman passenger before whom the applicant was alleged to have masturbated identified the applicant as the man who in fact had committed the offence before her in the carriage, and did so by reference, amongst other things, to videotape from security cameras at the Tottenham station. In addition, she had identified him from photographs which had been shown to her by investigators.
At the trial the applicant pleaded not guilty to counts 1 and 2 and the trial before the jury commenced. It resulted in convictions by the jury of the applicant on each of those counts.
In respect of the offence alleged in count 2, (assault with intent to rape), the young girl said that she was in the waiting area of the Tottenham station early in the morning of 15 July when the applicant entered and ordered her, effectively, to give him "a head job". She said that he had grabbed her by the hair and pushed her head towards his groin. According to her, he then beat her around the head. She resisted; he called her a "stupid bitch", and left. She ran to a Tattslotto agency where she phoned her mother and asked her mother to pick her up.
Later in the day, at approximately 1.45 p.m., it was alleged by the Crown that the applicant had boarded another train to Seymour and on that train it was alleged that he had masturbated in front of an 18-year-old girl. That girl had alighted from the train at Craigieburn and made a complaint to the conductor. Those events were the subject of count 3, to which the applicant pleaded guilty after he had been convicted on counts 1 and 2.
It is perhaps relevant to note that, when interviewed by the investigators in respect of counts 1 and 2, the applicant denied that he had ever been on the train from Flinders Street to Tottenham and denied that he had been on the Tottenham station that morning.
His Honour, following the conviction and the applicant's plea of guilty to count 3, sentenced him as follows. In respect of count 1 the applicant was sentenced to a period of six months' imprisonment, on count 2 he was sentenced to be imprisoned for a period of five-and-a-half years and on count 3 he was sentenced to be imprisoned for a period of four months. It was ordered that two months of the sentence imposed on count 1 and one month of the sentence imposed on count 3 be served cumulatively upon each other and upon the sentence of five-and-a-half years imposed on count 2. That made a total effective sentence of five years and nine months. He was ordered to serve four years before being eligible for parole.
Before sentence, the applicant had admitted a large number of prior convictions, the most relevant and serious of which, for current purposes and for the purposes of his Honour, was a conviction recorded in the County Court at Melbourne on 30 June 1986 when the applicant had been convicted of three counts of rape and had been sentenced to substantial terms of imprisonment. In the light of those prior convictions, which were conceded, his Honour would have been entitled, in accordance with the provisions of the Sentencing Act, when sentencing the applicant as a "serious sexual offender", to have sentenced him on the basis that the protection of the community was the primary purpose of punishment (s.6D of the Sentencing Act 1991). His Honour, however, chose not to do so when sentencing the applicant on this occasion.
The applicant has appealed both against his convictions and sentence on a number of grounds. He has appeared in person before us to argue those grounds. He has made submissions in respect of each of the stated grounds, and he has, in addition, raised further grounds, one of which was that pre-trial publicity prejudiced his trial; secondly, that the legal representation which he had at the trial failed him and led to a miscarriage of justice in a number of respects.
Having listened to everything that the applicant had to say, we are not satisfied that any of the grounds in support of his appeal against conviction has been made out.
The first ground was that the trial judge erred in admitting the evidence of the videotape identification made by the woman passenger on the train some time after these events had occurred. Clearly that was a matter of discretion. Objection was taken to the admission of such evidence. There is nothing in his Honour's remarks refusing to exclude that evidence which, in our view, amounts to error; and that ground of appeal must be dismissed.
Secondly, it was said that the trial judge erred in failing to grant separate trials in relation to counts 1 and 2. As we have sought to explain to Mr Rainsford this morning, it is a rare circumstance for offences that are linked by time and circumstance to be separately tried. It was a matter for his Honour's discretion, which he was asked to exercise, as to whether he would grant separate trials in respect of all counts on the presentment. On this presentment there were three counts. His Honour directed that counts 1 and 2 be tried together and count 3 tried separately. His Honour's discretion in that regard, in our view, was well exercised and there is no basis for suggesting that it miscarried.
The third ground was that the trial judge erred in failing to direct the jury that they ought not to reason that, by finding the accused guilty of count 1, he was therefore more likely to have been guilty of count 2. As we have indicated to Mr Rainsford this morning, his Honour did in fact so direct the jury, and it seemed to us that Mr Rainsford accepted that that was so. There is, therefore, nothing in that ground.
The next ground was that the trial judge erred in leaving count 1 to the jury when there was no evidence that there were other people other than the complainant in a position to have seen the penis of the accused in the train. That was, as we understand it, a submission that to sustain a conviction of wilful exposure contrary to the common law, an exposure to more than one person is required. This ground cannot, we think, be sustained. This was an exposure in a public place in which more people than the applicant were present and were able to congregate. The ground must be rejected.
The fifth ground was that the trial judge had erred in telling the jury that other evidence was more consistent with the second complainant's evidence than it was with his own evidence. That appears to be based on the proposition that there was some material before the jury which suggested that the complainant who was the subject of the assault with intent to rape had initially told police that the applicant had said to her, "Suck my dick", something which she did not swear up to during the course of the trial. Indeed the applicant pleaded not guilty to the assault with intent to rape, but agreed that he had assaulted the complainant. The only issue between the complainant and the applicant in respect of this matter was whether the Crown had proved, through the complainant, that there was an intention to rape. The applicant suggested to us this morning that no person is able to determine what is in the mind of an accused person, and certainly this jury was not in a position, having regard to the evidence before them, to determine what was in his mind on this morning. His contention is that he had used the remark to the complainant, "Suck my dick", in a sarcastic fashion after she had been cheeky to him. This was entirely a matter for the jury. They must have rejected the applicant's evidence. The issue was squarely before them and there is accordingly nothing in the ground which is taken as ground 5.
The final ground was that the trial judge had erred in allowing the prosecutor to tell the jury, after the conclusion of a "voir dire", that the defence was trying to say, even if the accused was guilty of count 1, only one person saw it so "that didn’t count, when it was only a legal point of law". Discussion with the applicant indicates that this was an "off the cuff" remark by the prosecutor which does not appear in the transcript. In our view, there is nothing in the point. Firstly, there is nothing in the transcript to indicate that the "off the cuff remark" was made; secondly, if such a remark was made, no point of it was taken by counsel for the accused at the trial; and, finally, his Honour gave full and proper directions to the jury at the end of the day, indicating to the jury that they were only entitled to act on the evidence which was before them and not upon any other matter.
We must say that we have looked at the pre-trial publications which the applicant suggests have caused his trial to miscarry. They appear to be publications, in so far as relevant, which emanate from the committal proceedings. In our view it is not reasonably open to suggest that those publications could have prejudiced the fair trial of the applicant, particularly in the circumstances where directions had been given by the judge to the jury that they could act only on the evidentiary material which was before them. No point about this was made by counsel at the trial, and no ground taken in the Notice of Appeal.
Finally, there is nothing before us that indicates that the applicant's trial had miscarried because counsel did not properly represent him. Indeed it seems to us, at least from reading the transcript, that full and proper representation was given.
So far as the sentence is concerned, it is our view that the total effective sentence of five years and nine months was well within the judge's discretion having regard to the prior convictions of the applicant. It is suggested by the applicant that he has had to serve his time in protection. That was a factor of which his Honour was made aware. The offence charged in count 2 was a particularly callous and vicious offence involving a young girl. In all the circumstances it seems to us, if anything, that the penalties imposed by his Honour by way of sentence were on the moderate side, no doubt because his Honour was prepared to extend to the applicant the leniency of not regarding protection of the public as the primary purpose of punishment.
In all these circumstances, the applications for leave to appeal against both conviction and sentence will be refused.
I might say in conclusion that it appears that the judge has failed to record, where he has dealt with the applicant as a serious offender, the details which are required by s.6F of the Sentencing Act. Accordingly, we think it desirable, pursuant to the provisions of that Act, that we should now record, in accordance with s.6F, that in respect of the sentence on count 2 there be entered in the records of the Court in respect of that offence the fact that the offender was sentenced for it as a serious offender.
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