REE v R
[2010] VSCA 124
•11 May 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0914
| REE | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P, NETTLE JA and HANSEN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 May 2010 | |
DATE OF JUDGMENT: | 11 May 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 124 | |
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CRIMINAL LAW – Appeal – Conviction – Maintain sexual relationship with a child under 16 – Requirement that Crown identify three separate occasions on which sexual offence committed – Lack of specificity in evidence – Whether third occasion capable of being established by generalised evidence of multiple occasions – Whether trial judge gave appropriate direction to jury regarding how three occasions must be established – Role of prosecution considered – Appeal allowed – Retrial ordered – R v SLJ [2010] VSCA 16 applied – Crimes Act 1958 (Vic) s 47A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
The applicant was presented on one count of maintaining a sexual relationship with a child under 16, contrary to s 47A of the Crimes Act1958 (Vic).[1] He was also presented on one count of committing an indecent act in the presence of a child under 16 and one count of assault, both counts also involving the same complainant. He was convicted on all three counts. On 14 November 2008 the applicant was sentenced to a total effective sentence of two years and nine months, with a non-parole period of one year and nine months. As at the date of the hearing of this application, he has therefore served approximately 18 months of the 21 month minimum term of imprisonment.
[1]The offence under s 47A is now known as ‘persistent sexual abuse of a child under 16’.
This is an application for leave to appeal against the conviction. I shall deal only with ground 1 of the appeal. In my opinion, for the reasons which follow, ground 1 should be upheld. For the reasons to be given by Nettle JA, I consider that grounds 2 and 3 should also be upheld.
It follows that the application for leave to appeal should be granted, the appeal allowed, the convictions set aside and a retrial directed.
Ground 1: jury directions on the s 47A charge
Ground 1 of the appeal is as follows:
The Learned Trial Judge erred in holding that it was not necessary for the complainant to particularise the three separate incidents that formed the basis of Count 1, Maintaining a Sexual Relationship with a Child Under 16.
The ground thus concerns the necessity to identify three separate occasions on which a relevant act was committed, for the purposes of proving the s 47A offence.
Before explaining briefly why this ground must be upheld, I wish to take the opportunity – for the assistance of County Court judges – to draw attention to the salutary difference which the newly introduced system of interlocutory appeals under the Criminal Procedure Act 2009 (Vic)[2] (‘CPA’) might now make in a case of this kind.
Suitable point for interlocutory appeal
[2]See pt 6.3 div 4 (‘Interlocutory appeal’).
As will appear, defence counsel acted with exemplary promptness in raising, at the commencement of the trial, the need for sufficient specificity in the identification of the three qualifying occasions for the purposes of the s 47A count. Defence counsel sought a stay of the proceeding unless and until the prosecution identified the three occasions on which the case was founded. Commendably, counsel referred his Honour to the seminal authority on this very provision, the decision of the High Court in KRM v R.[3]
[3](2001) 206 CLR 221.
In the event, his Honour ruled – in two separate rulings – against the defence submission. For reasons set out below, the ruling was erroneous. As a result the trial has miscarried in relation to this count. Had the system of interlocutory appeals been in force at the time of this trial, it seems to me entirely possible that this most regrettable circumstance – that is, the need for a retrial involving a child complainant – might have been avoided.
Although the advent of interlocutory appeals is significantly increasing the workload of this Court, the prophylactic function of such appeals has already become apparent. The increased workload was of course anticipated, as the necessary consequence of this Court having the opportunity to intercept erroneous rulings and to correct errors of law before a trial commences, so as to avoid the trial miscarrying.
This is precisely the kind of case for which the interlocutory appeal system was introduced. Had the judge’s rulings been able to be appealed before the trial commenced, this Court would have been able to say then what we are only able to say now – that is, that the rulings were erroneous – and the matter could have been corrected before the trial commenced. I express the hope that, in a similar case in the future where an issue of this significance is raised which goes to the basis of the whole trial, the procedures under the CPA will be utilised.
The error in the trial judge’s ruling
At the relevant time s 47A provided as follows:
(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 subsection (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.
(2A)It is not necessary that the alleged acts be of a similar nature or constitute an offence under the same provision.
(3)It is not necessary to prove an act referred to in subsection (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 subsection (1).
The necessity for clear identification of three occasions – proof of which is required by s 47A(2) to establish this offence – has been unmistakably clear since the 2001 decision of the High Court in KRM v R.[4] As mentioned above, that was the decision relied on by defence counsel in his submission to the trial judge. That the approach delineated in KRM is applicable to trials of this offence in Victoria has been clear since at least the decision of this Court in R v GJB[5] in 2002. The position was reinforced by this Court’s 2004 decision in R v Sobevski.[6]
[4](2001) 206 CLR 221 (‘KRM’).
[5](2002) 4 VR 355, especially [5], [6].
[6](2004) 150 A Crim R 355.
Recently, in SLJ[7] this Court had occasion to restate and reaffirm the approach required in trials for this offence, as follows:
[7]SLJ [2010] VSCA 16, [8]–[10].
It is well established that evidence of “a general course of sexual misconduct” or of “a general pattern of sexual misbehaviour” is not, or not necessarily, evidence of “an act … which would constitute an offence” for the purposes of s 47A. Although it is not necessary for the prosecution to prove the dates or “exact circumstances” of the act(s) said to constitute the offence, the prosecution must nevertheless
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”.
Although s 47A(3) relieves the prosecution of the necessity to prove a relevant act with “the same degree of specificity” as would be required if that act were alleged to constitute a substantive offence, there must nevertheless be ‘some degree of specificity as to date, time, place, circumstances or occasion of each relevant act’. This is so both as a matter of fairness to the accused and because of the necessity of the jury’s being satisfied as to the commission of the same three acts …
As noted by the High Court in KRM, which concerned s 47A, provisions of this kind were intended to create an offence
the component parts of which by their very nature may have occurred over a long period, in the past, and in circumstances in which precise recall of detail will not only be difficult for a complainant, but also may provide fertile ground for cross-examination of him or her on behalf of an accused.
The modification (by s 47A(3)) of the degree of specificity required
was doubtless based upon the particular difficulty, even impossibility, in most cases of repeated sexual offences committed by an adult against a person when a child, for the victim of such offences to remember, and to be able to particularise, the dates or exact circumstances involved.
It is remarkable – and, in my opinion, regrettable – that, when the defence submission was made to the trial judge, the prosecutor disputed it even though it was clearly correct. I am not suggesting that the prosecutor appreciated it was correct. The problem is that he ought to have appreciated that it was correct. Even more remarkably, in my view, the prosecutor told the judge that the submission had taken him by surprise, and complained that defence counsel had not brought a copy of KRM[8] to Court.
[8](2001) 206 CLR 221.
It is scarcely necessary to say that this was the complete reverse of what should have occurred. The need for definition of the three occasions is a fundamental issue in any s 47A prosecution. Axiomatically, it is the obligation of a prosecutor in such a case to ensure that he or she is fully abreast of the law applicable to the charge being prosecuted. In addition, it is the obligation of the Office of Public Prosecutions, in my respectful view, to make sure that the prosecutors they instruct are appropriately prepared for these cases, given the trauma involved for all concerned if a retrial becomes necessary. Proper preparation by a prosecutor is, in my opinion, essential both to ensuring the maintenance of the rule of law in Victoria – by ensuring that a fair trial is conducted – and to ensuring (to that same end) that trial judges receive the assistance from counsel which they are reasonably entitled to expect.
In the event, the trial judge reached an erroneous conclusion about the correct approach, and the submissions of the prosecutor must be seen to have contributed to the error. Indeed, upon reflection, this issue is so fundamental to a prosecution of this kind that it should have been dealt with well ahead of the trial. There should have been a clear identification, made in advance, of the evidence to be relied upon to prove the three occasions. This should have been part of the prosecution’s preparation for trial.
As noted above, defence counsel applied for a stay of proceedings to deal with the issue presently under consideration. The application for a stay was refused. In his reasons, the trial judge referred to the decision of the High Court in KRM,[9] and in particular to the judgment of McHugh J. His Honour said, however, that the form of the provision considered by the High Court in that case was not the same as that governing the instant trial. In refusing the defence application, the trial judge said:
[9]Ibid.
The legislation that applies in the current case did not apply to the case being considered by McHugh J [in KRM] … McHugh J actually refers to the amending legislation in his decision as being a variation on the position that applied to the case as he was required to consider it.
In my opinion, the subsequent amending legislation which is now before this court as s.47A(3) relaxes the requirements for specificity as compared to those which prevailed at the time under the legislation being considered by McHugh J.
Accordingly, it seems to me that the remarks of McHugh J on p.227 of the judgment do not have application to the legislation that governs this particular offence. They were remarks that related to the legislation in a materially different form.
It follows therefore that the amending Act in my opinion relaxes the requirement for specificity, not completely but does relax it to some degree. It follows therefore that in my opinion that the requirements or particulars as referred to by McHugh J do not have application to the present case. The question is therefore is the degree of detail as outlined in the summary of the prosecution opening, is it sufficient for the purposes of a prosecution under s.47A as it existed at the time when it is alleged these acts occurred.
In my opinion it does. In my opinion the effect of the amending legislation is to relax but not remove the requirement of specificity. In my opinion it is intended to cover the sort of situation which is in fact the effect of the evidence in this case and that is to provide for an offence where those particulars of the type given here, namely when the offending occurred and when the offending ceased but where the particular witness is not able to provide greater particulars of the alleged ongoing offending in the intervening period.
It follows therefore, that I do not think that the way the case emerges and is described in the summary of the prosecution opening is inconsistent with the requirements of s.47A as it existed at the time it is alleged that this offending occurred. The application for a stay is therefore refused.
Counsel for the defence subsequently sought a ruling which would have required the prosecution to be specific about the incidents upon which it relied to prove the charge. As set out in the ruling, the submission of the defence was that his Honour
should ultimately direct the jury that they could only be satisfied that the offence is made out if they agree that the particular incidents that [the defence] says the Crown should be required to specify, to the extent possible, occurred and they are satisfied of them to the standard of beyond reasonable doubt.
The prosecution argued in response that it was not
required to go beyond proving that in the relevant period, activity of the kind specified occurred on at least three occasions. If the jury is satisfied beyond reasonable doubt that it did occur on three occasions over the relevant period, that is all that needs to be proved.
The trial judge refused to make the ruling sought by the defence, agreeing with the prosecution’s submission. He again distinguished KRM.[10] His Honour concluded that:
The elements of the offence of which the jury must be satisfied beyond reasonable doubt is that the accused maintained a sexual relationship over the relevant period. Obviously they all have to be satisfied beyond reasonable doubt of that fact. It does not follow from that that the way in which a sexual relationship is established in a particular case has to be particularised more than as required by the legislation. And that is that activity of the prohibited kind occurred on three occasions during the relevant period. It follows, in my opinion therefore, that I ought not ultimately direct the jury that they each have to be satisfied beyond reasonable doubt that three particular acts occurred. All they have to be satisfied of is that a sexual relationship, as defined, existed between the accused and the complainant during the relevant period. It follows therefore that a great degree of particularity is not required by the prosecution.[11]
(I have highlighted the passage which discloses error).
[10]Ibid.
[11]Emphasis added.
Ultimately, the trial judge directed the jury as follows:
I tell you that when you are considering whether you are satisfied beyond reasonable doubt of the incidents upon which count 1 is based, you do not need to be satisfied beyond reasonable doubt that the incidents commenced on a certain date or that there was a particular number of incidents.
In other words you do not need to be satisfied that there were 100s because that is part of the evidence, or that there were a particular number, all you need to be is satisfied beyond reasonable doubt that at least three such incidents occurred. If you are satisfied, and you would need to be unanimous on this, if each of you are satisfied that at least three incidents occurred then the offence is made out.
You must all be agreed that during the relevant period the accused committed a relevant offence on at least three occasions. You do not need to be satisfied beyond reasonable doubt as to when it was occurred, when it started, or how often it occurred. But you must all agree that you are satisfied beyond reasonable doubt that a relevant offence was committed on at least three occasions.
As the Court said in SLJ,[12]
[T]he question was whether the evidence in question was capable of supporting a conclusion, beyond reasonable doubt, that the applicant had on an occasion – identified with ‘some specificity’ – done an act which constituted a relevant sexual offence.
In the present case, as in SLJ,[13] evidence was left to the jury which was not capable of supporting a conclusion beyond reasonable doubt that the applicant had on three specific occasions done relevant acts. Here, as in SLJ, there is every likelihood that the jury will have found a qualifying offence or offences in evidence which simply did not permit such a finding to be made, and on that basis found the applicant guilty.
[12][2010] VSCA 16, [16]–[18].
[13][2010] VSCA 16.
It is a matter of some concern that counsel for the Crown on this appeal should have contended that there was no deficiency in the way in which this offence was presented to the jury or directed on by the judge. According to the argument advanced in this Court, it is sufficient compliance with s 47A for the Crown to prove a first and a last occasion of sexual offending with specificity, with the third being constituted by ‘the next occasion after the first’. In the present case, there having been evidence that there were many occasions between the first and the last, it was argued by counsel for the Crown that, as a matter of logical inevitability, there must have been a next occasion after the first and before the last.
Doubtless that is true as a matter of logic, but it is unsustainable as a matter of law, by reason of the authorities to which I have referred. We were told that this argument reflected the view of the Sexual Offences Unit in the Office of Public Prosecutions. As I have said, it is not possible as a matter of law for generalised evidence of multiple occasions to supply proof beyond reasonable doubt of a specific occasion. That has been the law in Victoria for a decade and remains so. If the Director of Public Prosecutions wishes to contend that the law should change, that is an argument which can only be made in the High Court.
I note finally that counsel for the Crown helpfully drew attention to a matter not identified by the applicant’s submissions, that is, that there was no unanimity direction. It is, of course, axiomatic that there must be such a direction whenever there is any scope for uncertainty about which acts and which occasions may found a
conclusion reached by one or other juror. In the present case, it is impossible to know which acts, of the many in respect of which evidence was given, jurors may have regarded as constituting the requisite three occasions.
I would therefore allow the appeal.
NETTLE JA:
I agree with the President that ground 1 is made out and with the disposition of the appeal he proposes. I add with respect to grounds 2 and 3 the following.
Under ground 2 it was contended that the judge erred in failing to give an adequate propensity direction in relation to certain uncharged sexual acts, of which evidence had emerged unexpectedly in the course of the trial, and as to evidence of violent acts committed by the applicant led by the Crown apparently to establish why it was that the infant complainants had hesitated so long in bringing the matters of which they complained to the attention of their mother.
The trial judge gave a propensity direction concerning evidence that the applicant had physically attacked the complainant's mother. But as counsel for the applicant pointed out, there were a number of other matters which were likely to be prejudicial to the applicant that called for a propensity direction. They included that the applicant had as a matter of course used bad language in front of the complainants; that he was habitually violent; that he was frequently violent when drunk; that he was a lazy person that did bad things; that he had made threats against the children's stepfather; that he had threatened to bash the children if they said anything about the acts of which they complained; that he had regularly said that he wanted ‘to fuck’ the complainants; and that he had written salacious letters to them.
Counsel for the Crown submitted that, although the judge had not given any propensity direction as such, other than concerning the attack upon the complainant's mother, his Honour did give a separate counts direction and some
other directions which in aggregate effect amounted to a sufficient propensity direction.[14]
[14]R v Beserich (1993) 30 NSWLR 510; R v KRM (2001) 206 CLR 221.
There are some occasions when a separate counts direction coupled with other linked directions falling short of a propensity direction as such, are sufficient to meet requirements. This Court discussed the matter in R v Kerbatieh,[15] amongst other cases, but as was there pointed out, the form of direction usually given in this State is now long well established and in most cases it is preferable that it be followed.
[15](2005) 155 A Crim R 367.
The circumstances in which propensity directions should be given and the matters to which they should be directed were essayed at length by Callaway JA in R v DCC.[16] Having regard to what was there said, and what has been said subsequently in light of that analysis, I consider that in this case the propensity direction fell well short of what was required. With respect, it appears to me that the judge did not give sufficient attention to matters which were plainly prejudicial and which should have been the subject of such a direction.
[16](2004) 11 VR 129.
It is perhaps not without significance that defence counsel did not take exception, and there is a possibility that the defence was prepared or wished to have evidence of the matters in question available in order to found a defence. But even if that is so, and it was not suggested that it was not, a direction was needed to guard against what I think to be the real possibility of the jury reasoning improperly from the evidence to a conclusion of guilt. In my view, therefore, ground 2 is made out.
Under cover of ground 3, it was contended that the judge erred in failing to direct the jury on the proper use of the relationship evidence tendered by the Crown. It included the matters to which I have referred when dealing with ground 2. As will appear from what I said there, it was directed to establishing not only that there was a relationship of violence sufficient to engender fear in the children which
would deter them from complaining timeously about the offences which they alleged, but also to demonstrate what was referred to by the High Court in R v HML[17] as a sexual interest in the complainants.
[17](2008) 235 CLR 334.
In my view, the nature of that evidence was such that the judge should have identified more or less precisely how each piece of the evidence was to be used and not used, and directed the jury that they were not to reason from the uncharged acts that, just because the applicant may have committed those other acts, he was the sort of man who was likely to have committed the subject offences. It was also necessary for the judge to consider whether the evidence that the applicant said many times to the complainants that he wished ‘to fuck’ them would cause the jury to conclude that the applicant had a sexual interest in the complainants and to treat that as an important step in their process reasoning to a conclusion of guilt. If so, it was necessary for the judge to give a direction of the kind which was considered by this Court in R v Sadler.[18] In my view, therefore, ground 3 is also made out.
[18](2008) 20 VR 69.
It follows from the fact that grounds 2 and 3 have been made out that it would not be open to enter an alternative conviction upon the counts of indecent act with a child and assault.
HANSEN AJA:
I agree that for the reasons given by the President and Nettle JA, the application for leave should be allowed and that orders be made as indicated by the President.
MAXWELL P:
The order of the Court is that:
1. The application for leave to appeal against conviction is granted.
2. The appeal is treated as having been instituted and heard instanter and allowed.
3. The convictions recorded are set aside and the sentences imposed in the Court below are quashed and we direct that there be a retrial.
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