R v Sobevski
[2004] VSCA 216
•2 December 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 60 of 2004
| THE QUEEN |
| v. |
| FLORE SOBEVSKI |
---
JUDGES: | WINNEKE, P., BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 October 2004 | |
DATE OF JUDGMENT: | 2 December 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 216 | |
---
Criminal law – Conviction – Indecent act with a child under the age of 16 years – Jury not properly instructed by trial judge – Verdict unsafe and unsatisfactory.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. Dr S. McNicol | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr D. Grace, Q.C. Mr D. Hallowes | Roberty Stary & Associates |
WINNEKE, P.:
For the reasons advanced by Vincent, J.A., which I have had the opportunity of reading in their draft form, I agree that this application for leave to appeal against conviction should be granted; the appeal allowed; the conviction on count 5 set aside; and in lieu thereof a verdict of acquittal entered on that count.
I think I should say that the problem which arose in this case – and it was a problem which beset both the trial judge and the jury – resulted from charging the applicant with the offence prescribed in s.47A of the Crimes Act 1958; namely the offence briefly described as “maintaining a sexual relationship with a child under 16 years”. The period of the “relationship” was described in the Presentment (count 1) as “between 1 January 2001 and 28 December 2001”. The offences alleged in counts 2 to 5 of the Presentment were alleged to have taken place on occasions between 1 November 2001and 28 December 2001. These four counts alleged the commission of offences within the time span of the “relationship” charged in count 1 and were offences of a type relevant to the proof of that relationship; the essence of the offence created by s.47A being the commission of at least three “relevant offences” during the alleged period of the relationship. His Honour was, therefore, correct when he told the jury that the offences alleged in counts 2 to 5 were particulars of the offence alleged in count 1[1]; and to tell them that if they convicted the applicant of the offence alleged in count 1, they were discharged from the obligation to return verdicts on the subsequent counts.
[1]Cf. R. v. GJB [2002] 4 V.R. 355 at 362-3.
The offence charged in count 1 was not apt to meet the circumstances of this case. The Crown obviously desired to allege a relationship which extended for a twelve month period, but – apart from the offences alleged in counts 2 to 5 (inclusive) - it had nothing more than very general material, suggestive of other sexual offending, which may or may not have included the specific offending alleged in the remaining four counts. That “general material” could not in my view have supported the offence charged in count 1 because, notwithstanding the provisions of
s.47A(3), it was far too vague in its content to support any conviction for a criminal offence. The fact that the offence alleged in count 1 was persisted with led to the difficulties in the trial to which Vincent, J.A. has adverted in his reasons for judgment.
BUCHANAN, J.A.:
I agree with Vincent, J.A. that, for the reasons stated by his Honour, the appeal should be allowed and the conviction set aside.
The confusion that gripped the participants in the trial appears to have been produced by the decision of the Crown to charge particular offences against the applicant that were all alleged to have occurred within the period in which the applicant was alleged to have maintained a sexual relationship with the complainant and to use those specific charges as particulars of the charge of maintaining a sexual relationship. Count 1 charged the applicant with maintaining a sexual relationship with the complainant during the period from 1 January 2001 to 28 December 2001. The indecent acts the subject matter of counts 2, 3, 4 and 5 were alleged to have occurred respectively between 1 November 2001 and 26 December 2001, on 27 December 2001, on 28 December 2001 and on 28 December 2001.
Section 47A is concerned with cases where the prosecution is unable to lead evidence to establish the specific date, time, place, occasion and circumstances of each of a number of sexual defences. In the present case there was evidence identifying quite specifically the circumstances and occasion of the commission of four offences and the date of three of those offences. There was also, general, unparticularized evidence of the commission of other offences over a period of about a year. In my opinion either the applicant should not have been charged with count 1 or count 1 should have been limited to the general evidence.[2] Confusion ensued once the evidence relating to counts 2 to 5 was called upon to perform double duty
as particulars of count 1.
VINCENT, J.A.:
[2]Although the evidence was so general that it may be doubted whether it was sufficient to found an offence. See KRM v. R. (2001) 206 C.L.R. 221 at 226-7 per McHugh, J.
The applicant was presented in the County Court at Melbourne on 11 February 2004 on one count of maintaining a sexual relationship with Z, a child under the age of 16 years (count 1), and four counts alleging the commission of indecent acts with her (counts 2 to 5). Counts 2 to 5 were alternative to count 1 and formed the basis of the allegation contained in that count.
He pleaded not guilty and a trial was conducted, at the conclusion of which he was acquitted on all, save one of the counts of indecent assault (count 5).
After hearing a plea in mitigation of penalty, the learned sentencing judge, on 24 March 2004, recorded a conviction against him, and imposed a sentence of 12 months' imprisonment to be served by way of an Intensive Correction Order with conditions attached.
The applicant now seeks leave to appeal against his conviction on the ground that:
“The verdict of the jury of guilty in relation to count 5 should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.
PARTICULARS
(a)The verdict of ‘guilty’ in relation to count 5 is factually inconsistent with the verdict(s) of not guilty on counts 2 and/or 3 and/or 4.
(b)The verdict of ‘guilty’ in relation to count 5 is otherwise unsafe or unsatisfactory.”
The Background
It appears that the applicant had been a friend of the family of Z for about five years. He would visit them at their home, and on occasions, M, the mother of Z, would take her children to visit the applicant and his family at their home.
Z, who gave evidence by way of the VATE procedure, claimed that, during the period encompassed by count 1, on 10 or 15 occasions when the applicant came to her home on such visits, he touched her under her clothing in the genital region. In addition to the specific incidents covered by counts 2 to 5, she referred to an indecent touching that, she said, occurred when she was in her bedroom playing Nintendo, another which commenced when she was asleep on a couch in the loungeroom of the house, and a third that took place when she was engaged in colouring in a picture.
Count 2
With respect to the indecent act encompassed by count 2, Z stated that the applicant touched her under her clothing in the genital area while she was sitting on the steps at the front door of her family home. Her brother G, who was nearby playing with a basket ball, saw him do this. The activity was carried on for one or two minutes. The presentment alleged that this offence was committed between 1 November 2001 and 26 December 2001.
The evidence of G was also given using the VATE procedure. His version of what transpired, at the time of the alleged commission of this offence, varied in some respects from that of his sister. He stated that he was riding his scooter and Z was sitting on the applicant’s lap near the house. He saw the applicant touching her “rude part” over her clothes. She was wearing long pants and he was rubbing her vagina. She was trying to push the applicant away, but he persisted. He saw the applicant give money to his sister, but said that his little sister and he were also given $5 as Christmas presents.
Count 3
This count related to an incident alleged to have taken place on 27 December 2001. Her mother was out, but her father was home at the time. She was in the bathroom and the applicant had gone to the toilet. He called to her. She was about to walk out of the room when he told her to stay and touched her “rude part”. She said that he gave her money, saying that he loved her “the most” and that she was to keep secret what had happened.
Counts 4 and 5
M gave evidence that, on Friday 28 December 2001, she went with her three children, Z (who was aged nine years at that time) and two younger children, G (a boy aged 11 years) and Y (a girl aged three years) to the Brimbank Shopping Centre in Deer Park. They were there joined by another friend, named Mary, who was accompanied by her two children. After parking their cars, they went into the centre where they met up with the applicant. They then all went to a coffee shop in the food court. M left for a short time to purchase some milk, leaving Z in the care of Mary. Her other two children went to a games centre nearby.
On returning to the coffee shop, M saw Z sitting on the applicant’s lap. He told M that he would take the child back to his house. She said that, as Z wanted to go with him, she agreed to this. However, in cross-examination, M agreed that it was Z who suggested going to the applicant’s home. He told M that he had walked to the shopping centre and that it would take him about 15 minutes to return home and that she could then pick up Z from there. M stated that her younger daughter also wanted to go with them and so she took her into a shop in order to distract her while the applicant and Z walked off.
She then proceeded to do her shopping, but left the centre after only a short time as she was concerned about Z’s welfare. She drove to the applicant’s home, stopped outside and sounded her horn, but no one emerged. She then sent G to knock on the door. He waited there, she said, for about five minutes before the applicant and Z emerged. The applicant gave the child a kiss on the cheek. Z got into the car and M then drove home. She said that Z was quiet and did not speak much during this journey.
When they arrived home, M sent the other children inside and asked Z what was wrong. Z was holding a $5 note and she replied that she was not allowed to tell her what had happened, as it was secret. M responded that there should be no secrets. They went inside the house and M asked again what was wrong. Z then told her that the applicant and she had gone by car to the applicant’s house and watched some TV. He had asked her to sit on his lap. When she did so, he put his hand on the “rude part” of her body (count 4). Her “rude part” she indicated by pointing to her vagina. He gave her the $5 note and they went to the back of the house to see his dog. He then took Z into his bedroom and shut the door. He asked her to suck his penis and she said no. He pulled his pants down and made her put her hand on it. He asked her to kiss it and she did (count 5). She was sitting on his bed with her legs crossed, when she heard the sound of her mother’s car horn. The applicant then quickly pulled up his pants and they went outside.
M said that her daughter commenced to cry as she was recounting these events. She told M that she was very frightened at the time and did not know what to do. M rang the applicant and confronted him with these allegations. He responded that she was sick and hung up on her. She rang back and he told her that she was crazy and hung up again. M said in cross-examination that a couple of months prior to this event her son, G, had told her that he had seen the applicant put his hand on Z, but that she did not take much notice at that time.
Z said that she was in the food court at the Deer Park Shopping Centre with her mother and the other children when the applicant approached and asked her mother if he could take her home with him. Her mother agreed and he drove her there in his green car.
When they arrived, they went inside and he asked whether she wanted a drink. He gave her some Coca Cola and turned on the television set. He then told her to sit on his lap. He gave her some money and kept touching her on her vagina under her clothes. He asked her not to tell her parents, brother or sister about this and to keep secret what had transpired. They then went and saw his dog.
After that he took her to his room, told her to lie back on his bed and he showed her his “rude bit”. He told her to touch it and she said that she did. He then told her to kiss it. At that stage, he was standing in front of her with his pants down around his ankles. He kept repeating “Do it, do it now or you’re not going home.” She said that she refused. However, he persisted and she finally complied. She said that she wanted to get out of the house but was unable to do so as he had locked the front door. She then heard her mother’s car horn sound a few times. The applicant quickly pulled up his pants. She went to the lounge room where she finished her drink and then left.
Mary, a friend, stated that she had met up with M at her house before they drove in separate cars to the shopping centre. They walked around for a while with the children, until they decided to stop for coffee. M said that she had left her purse at home and would have to get it. She then left two of her children with Mary, taking the youngest with her. She was away for approximately half-an-hour. She returned in company with the applicant. He told Mary that M had come to his house to borrow some money from him and that she had invited him to join them for coffee as it was Mary’s birthday. While they were having coffee, Z asked “Can I go to [Dedo’s] place?”[3] M said that she could. After they had finished, the applicant took Z by the hand and they left. About 15 minutes later, M said that she needed to leave to pick up her daughter from the applicant’s house.
[3]Dedo is, according to the evidence, the Macedonian word for grandparent.
The applicant gave evidence in his defence. He said that M came to his house and invited him to go with her to the shopping centre. He asked to travel in her car but she refused, and so he went in his. Initially, he had told her that he would walk there, but he did not do this. Ten minutes after she left his home, he met up with her at the shopping centre. Mary paid for the coffee as it was her birthday. Z asked if she could go to his home. He said that she could, if her mother agreed. At first M said no, but then changed her mind and said that she would pick the child up afterward. When they returned to his home, he did not lock the front door and asserted that nothing untoward had taken place. He denied all of the allegations of the commission of sexual offences made against him.
When interviewed by the police, the applicant maintained that he had not offended against Z on any occasion and denied each of the specific allegations put to him.
The Trial
There were some curious features about the trial process in this case, and it is evident from the transcript that a degree of confusion developed in the minds of all involved. The jurors were unclear, at least concerning the manner in which they were to proceed with respect to the delivery of their verdicts and the trial judge and counsel were uncertain as to what would eventuate if the jury arrived at particular conclusions.
These problems arose from the manner in which his Honour instructed the jury in his Charge. When he reached the point at which he directed them concerning the need to give separate consideration to each count, he stated:
“Now, the Crown here brings five different charges or counts, as they are technically called, against the accused. They are all on the one presentment as the formal document accusing him is called. As you have already been told by the learned prosecutor, that counts 2, 3, 4 and 5 are all alternative counts to count 1 on the presentment and so it is only if you find the accused man not guilty of count 1 that you go on to consider the subsequent counts on the presentment.[4]
…
It is, of course, obvious that when you are considering count 1, you will, in order to determine whether or not you find him guilty of that count, consider the subsequent counts on the presentment because those counts at least in part constitute particulars of the sexual relationship which is alleged in count 1 ….”[5]
[4]T200.
[5]T201.
He then proceeded to deal with the elements of the offences, saying (inter alia) with regard to count 1:
“[I]n determining whether there was, in existence, a sexual relationship between the child and the accused that the Crown has alleged that such acts have taken place on a number of times during the relevant period, although on the presentment it only particularised, and this is a bit unusual, because the subsequent counts, that is counts 2, 3, 4 and 5 are in fact particulars of the sexual relationship, and in each case they assert or allege that an indecent act took place as defined by the section.[6]
…
If, at the end of your deliberations, you find that he did, in fact, commit an indecent act with her on not less than three occasions during the relevant period, and you are also satisfied that the Crown has proved the other elements of the offence, which I have mentioned, and you make that finding on the basis that you are satisfied beyond reasonable doubt, then provided that you are each agreed that [sic] not less than three of the same indecent acts, and what I mean by that is, if there are four – let us say there are four indecent acts. There are more than that, there are seven, I think, of which evidence has been given, but let us say there is A, B, C, D and E. Well, you all must be agreed on whether it was A, B and C, or A, B and D, do you follow, so that you have got evidence of those.”[7]
[6]T203.
[7]T204.
Count 1 was laid pursuant to the provisions of s.47A[8] of the Crimes Act 1958 which reads in part:
[8]This section was introduced in 1997:
“The Parliamentary debates disclose that the section was introduced as a reaction to S v The Queen (1989) 168 CLR 266. In that case the appellant was charged with three counts of carnal knowledge each on unknown dates in separate periods of 12 months. The complainant gave evidence of two specific acts of intercourse, but there was no evidence to link either with any one of the specified periods. The complainant also gave evidence of numerous further acts over a period of two years. She could not recall any details. She could only say it occurred ‘every couple of months’. The Court held that in the absence of any act being identified as the subject of a count, the Crown could not lead evidence which was equally capable of referring to a number of occasions, any one of which might constitute an offence, and invite the jury to convict on any one of them.” R. v. KRM (1999) 105 A.Crim.R. 437 per Buchanan, J.A. at [7].
“(1)A person who maintains a sexual relationship with a child under the age of 16 to whom he or she is not married is guilty of an indictable offence.
(2)To prove an offence under sub-section (1) it is necessary to prove-
(a)that the accused during a particular period (while the child was under the age of 16 ) did an act in relation to the child which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B); and
(b)that an act which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B) took place between the accused and the child on at least two other occasions during that period.
…
(3)It is not necessary to prove an act referred to in sub-section (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against sub-section (1).”
Although the offence is characterized as the maintenance of a relationship and is suggestive of the engagement in a course of conduct:
“an examination of sub-s. (1A) makes it plain that that is not the case with the offence created by s.229B(1). Rather, it is clear from the terms of sub-s. (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions.”[9]
[9]KBT v. R. (1997) 191 C.L.R. 417 per Brennan, C.J., Toohey, Gaudron and Gummow, JJ. at 422.
McHugh, J. addressed the question of the precision with which the date and circumstances of the alleged acts must be identified in KRM:
“Here the legislature has made it clear that the prosecution does not have to prove the date or the exact circumstances of the offence. But that is all. It has not said that the prosecution need not give particulars or need not prove the general circumstances of each act constituting an offence.
The need for the prosecution to prove that “such an act also took place ... on at least two other occasions’ indicates that the prosecution must prove the circumstances or occurrences surrounding each of the acts in sufficient detail to identify each ‘occasion’. Reference to circumstances or occurrences happening at a particular time is the usual way of identifying or describing an ‘occasion’. In the context of s47A, where it would make no sense to describe the ‘act’ as the occasion and where the date and the exact circumstances need not be proved, the term ‘occasion’ should be understood as referring in a general way to the circumstances accompanying the ‘act’.”[10]
[10]KRM v. R. (2001) 206 C.L.R. 221 at [16]-[17].
It is necessary for a trial judge to make clear to the jury, on what alleged acts the prosecution relies for a verdict of guilty to be returned against the accused, that they had to be agreed that he had committed at least three of them, and that they had to reach that agreement on the basis of his commission of the same acts.
The jury were obviously troubled by the manner in which the charge in count 1 was formulated and the concept of relationship which appeared to be involved. They enquired whether it could be found that a “relationship” had been “maintained” on the basis of the offences in counts 3, 4 and 5 which were alleged to have been committed within the short time frame of 30 hours. His Honour informed them that this could be done as there were three offences involved. The foreman then asked whether there was any ‘time element’ to which the judge responded ‘No – there is no time element.’ This instruction was repeated in a further redirection. I find myself unable to put aside the thought that the jury may have found the notion of maintaining a relationship quite inappropriate in the circumstances and particularly when the count itself covered a period of 12 months. It seems likely that they would have been assisted by some further instruction, pointing out that, although the offence was so described, what they had to determine was whether they were satisfied beyond reasonable doubt that the applicant had committed three separate acts of a kind covered by the provision.
Presumably, his Honour, when referring in his charge to seven indecent acts, was including the three occasions earlier mentioned that were not the subject of specific counts, but this is not clear. Z referred to 10 or 15 acts which can be taken to have included the three in respect of which no charges were laid, but may or may not have included those covered by the separate counts. Unfortunately, he provided no instruction as to what acts could provide a foundation for count 1 or the relationship between the acts covered by the individual counts and the uncharged acts alleged to have been committed by the applicant. Nor is it possible to discern what counsel may have submitted to the jury as his summary of the addresses was extremely brief and no transcript of them has been provided to the Court. The jury was provided with almost no guidance on this aspect.
As pointed out earlier, the trial judge directed the jury that they had to “[determine] whether there was in existence a sexual relationship between the child and the accused”. He referred to the other counts on the presentment as “in fact particulars of the sexual relationship”. The jury would have been left in no doubt that such a relationship could not be found to have existed unless it was established that the applicant had engaged in at least three indecent acts with the child, but whether they had to constitute incidents in what could be described as a continuing relationship, the indicia of the existence of such a relationship were left at large.
There is, in that situation a distinct possibility that they may have approached their task on an erroneous basis which could well have had serious repercussions in their consideration of the other counts.
His Honour instructed the jury that they were not to consider counts 2-5 until after they addressed count 1 and only if they acquitted on that count.
When the jury returned, the prosecutor expressed concern about this direction. What would happen, he queried, if they could not reach agreement on that count?
His Honour accepted that this could pose a problem and further instructed the jury:
“If you reach a verdict of not guilty on count 1, then of course you would go and consider the subsequent counts 2, 3, 4 and 5 individually. But if you have problems on count 1 you have just got to come back and inform the court and then we will just have to review that position. Hopefully it will not arise, but it did. So you have really got to strive and do your best to reach a verdict, whatever that verdict is on count 1.”[11]
[11]T230-231.
Obviously unclear about what they were to do, the jury returned after addressing count 1 only.
After announcing a verdict of not guilty, the foreman said:
“Begging your pardon, I thought we were to do one and then come back for …”
His Honour then sent them out to consider the balance of the presentment without ascertaining what it was that they had “come back for”.
They returned again and requested that the VATE tape of Z be played. As it was necessary for them to consider each of the allegations contained in counts 2-5 before they arrived at a verdict on count 1, and although their request does not of itself suggest inconsistency, I have some unease arising from it.
Of particular importance at this level is the tension that I perceive between their acquittal of the applicant on count 4 and the finding of guilt returned on count 5. The offences allegedly occurred within a matter of minutes and, although submissions were advanced by the Crown to the contrary, there was, for practical purposes, nothing that can be seen to explain in any adequate fashion how this might have occurred. Reference was made to the evidence of a delay in opening the front door of the applicant’s home. However, Z also said that she went to the loungeroom to finish her drink, and the length of any delay is very uncertain. Z described the bedspread in the applicant’s bedroom, but she had been in the house on prior occasions, and, finally, it was pointed out that she was quiet on the journey home with her mother. Again, this could not provide a foundation for distinguishing between the two offences.
The present case does not raise any question of logical inconsistency and it is important to bear in mind that the courts have repeatedly cautioned against the application of too rigorous an approach to the interpretation of jury verdicts when considering whether they are to be regarded as inconsistent in a broader sense. However, in view of the possibility of confusion having been introduced into their deliberations by reason of the inadequacy of the judge’s directions, the potential for confusion or compromise must be seen to be present. The present matter falls into that -
“residue of cases … where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case’.” (Citations omitted.)[12]
[12]McKenzie v. R. (1996) 190 C.L.R. 348 at 368 per Gaudron, Gummow and Kirby, JJ.
Accordingly, I would allow this appeal and set aside the conviction of the applicant on count 5 as being unsafe and unsatisfactory in the circumstances.
---
0
1
0