Ryan Willshire (a Pseudonym)[1] v The Queen
[2019] VSCA 142
•20 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0183
| RYAN WILLSHIRE (a Pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of the identification of the alleged victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, BEACH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 June 2019 |
| DATE OF JUDGMENT: | 20 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 142 |
| JUDGMENT APPEALED FROM: | DPP v Willshire (a pseudonym), 10 July 2018 (conviction); [2018] VCC 1108 (sentence) (Judge Smallwood) |
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CRIMINAL LAW – Appeal – Conviction – Attempted sexual penetration of a child under 16 – Whether evidence sufficient to establish an attempt – Whether verdict of guilty unsafe and unsatisfactory – Leave to appeal refused – Crimes Act 1958, s 321N.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Hands | Stephen Peterson Lawyers |
| For the Respondent | Ms M Mahady | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA:
Introduction
After a three day trial, on 10 July 2018 a jury empanelled in the County Court found the applicant guilty of committing an indecent act in the presence of a child under 16[2] (two charges — charges 1 and 2); and attempted sexual penetration of a child under 16[3] (one charge — charge 3).[4]
[2]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.
[3]Contrary to ss 45 and 321M of the Crimes Act 1958.
[4]On 20 July 2018, the judge sentenced the applicant to six months’ imprisonment on each of charges 1 and 2, and to two years’ imprisonment on charge 3 (being an effective two years’ imprisonment for that suite of offences). The judge ordered that 15 months of that sentence be served cumulatively upon a total effective sentence of five years and three months’ imprisonment imposed upon the applicant the same day following his pleas of guilty to sexual penetration of another child under 16 and indecent assault. Thus, the total effective sentence imposed for all offences was six years and six months’ imprisonment, upon which the judge fixed a non-parole period of four years.
Each charge related to alleged offending against his nephew, ‘RLJ’, in a two year period between 16 July 2007 and 15 July 2009. At the relevant time, RLJ, who was born in 1994, was aged 13 or 14 years; and the applicant, born in 1977, was aged about 30. RLJ’s mother is the applicant’s sister.
The prosecution alleged that the offending occurred at the applicant’s home, located in a Latrobe Valley city. RLJ’s mother had dropped him at the applicant’s home. It was alleged that RLJ and the applicant were watching television in the applicant’s bedroom when the applicant put on a pornographic movie. The applicant then asked to see RLJ’s penis, and masturbated his own (charge 1). RLJ pulled down his pants. The applicant played with RLJ’s penis and, so it was alleged, tried to put it into his mouth, saying ‘let me suck your dick’ (charges 2 and 3). As will be seen, the evidence relating to charge 3, attempted sexual penetration of a child under 16, is the nub of the present application.
By a notice dated 5 September 2018, the applicant seeks leave to appeal against his conviction on the following ground:[5]
[5]As originally formulated — prior to the filing of the amended written case — the ground was as follows:
The verdict was unsafe and unsatisfactory because:
(i) the complainant’s evidence was inconsistent and contradictory;
(ii) the complainant gave ‘critical’ evidence that the applicant’s father was present during the offending when the uncontroverted evidence was that he was not present at any stage;
(iii) there was a significant delay in the complainant coming forward to make a complaint to the police and partly because of this, the allegations lack specificity;
(iv) the evidence could not support a finding of guilt on the attempted sexual penetration because:
(a)it was evidence of conduct merely ‘preparatory’ to the attempted sexual penetration; and
(b) it was also not unequivocally referable to the sexual penetration.
The conviction on the attempted sexual penetration was unsafe and unsatisfactory because:
(a) there were gross inconsistencies in the complainant’s evidence concerning the attempted sexual penetration; and
(b) the complainant gave evidence that the complainant’s [grandfather] was present when uncontroverted evidence showed that he was not. The complainant’s [grandfather’s] attendance was ‘critical’ to the Crown case; and
(c)there was a significant delay between the alleged attempt occurred in 2007 or 2008 and the complainant reporting the matter to the police on 5 May 2016; and
(d) the evidence could not support a finding of guilt on the attempted sexual penetration because such evidence as there was, was either:
(i) evidence of acts merely preparatory to the commission of the offence; and
(ii) equally referable to an uncharged indecent assault as to the attempted sexual penetration; and
(iii) the intent to commit the offence is unclear.
In my opinion, for the reasons that follow, leave to appeal against conviction should be refused.
The evidence
In order to understand how the ground is put, it is necessary to summarise the evidence in moderate detail.
RLJ was aged 23 when he gave evidence at trial. The applicant, RLJ said, was his uncle, his mother’s brother. As RLJ grew up, he socialised with the applicant and got on with him ‘pretty good’. The applicant lived with RLJ’s grandparents in a weatherboard house in a town in the Latrobe Valley region.
When he was ‘roughly about 13’, RLJ said, something happened in the applicant’s bedroom. His mother, he said, had wanted to visit his grandparents. She drove them. Asked by the prosecutor whom he thought to be present when they got to his grandparents’ home, RLJ said: ‘Um there was [‘S’] which is mum’s mum, I think [‘CM’] which is her dad and [the applicant]’. After they arrived, his ‘mum’ was speaking to ‘her mum and dad’ and he ‘walked up to the back room where [the applicant] lived’. RLJ’s ‘mum spent some time with her mum’, before leaving to go home. He remained at the house for a ‘sleep over’.
RLJ found himself alone with the applicant in the applicant’s bedroom at the back of the house. He had been there before. The applicant was sitting on the bed and he was sitting on a chair. They were watching television, and he was ‘pretty sure’ that ‘Everybody Loves Raymond’ was on. It was the afternoon. They were talking, and the applicant ‘eventually put a porno on‘. He got off the bed and put a pornographic film on the DVD player. RLJ said he ‘glimpsed at’ the movie.
Asked how he felt about the movie, RLJ gave evidence that he was: ‘Dumbfounded, shocked. Didn’t know really how to feel’. With respect to what the applicant said and did while the movie was on, RLJ said:
He’d um said don’t – don’t be afraid, you know it’s just a porno. And um he eventually said you know, don’t be afraid to pull your penis out and whatnot. And … He wanted me to show me – show me his – show me – show him my – me [scil., my] penis. And he’d asked to play with it and … I said no.
RLJ gave evidence that the applicant actually said, ’Show me your dick’, a ‘fair few times’, but that he said that he did not want to. He said of the applicant:
He asked if he – like asked to pull me [sic] pants down, asked – asked if he could touch it, touch me [sic] penis, me [sic] dick. … He was still on his bed. … He’d pulled his pants down and started masturbating and playing with himself … I was sittin’ on the chair still. … He’d pulled his pants down and yeah started playin’ with himself and masturbating. I looked up, glimpsed and yeah I didn’t know how – what feeling, it was sort of scared, dumbfounded, shock. … He said, ‘Come on don’t be afraid, don’t be afraid to look’. … And I went, ‘No, no I’m not – I don’t – I’m not gonna’ [sic]. And he said you know, pull your pants down.
The complainant said that he eventually pulled his pants down, when standing in front of the chair where he had been sitting. When he did this, the applicant was getting up from the bed, and he said: ‘See it wasn’t that bad as [scil., was] it?’. RLJ gave evidence that the applicant asked ‘if he could play with me [sic] dick or suck my dick’. He continued:
He’d touched me [sic] dick and started or tried playin’ with it, playin’ with me [sic] dick. … I was standing up and he was pretty much standing at the front of me to the left.
There was then the following passage of evidence, critical to the ground of appeal:
[PROSECUTOR] You said that he also asked to suck your dick?---Yes.
What if anything did he do in relation to that?---He’d you know went to go kneel down or crouch down to.
At the stage when he kneeled down or crouched down was he touching you?---He was touching my dick yes.
So how far did he get towards – by your dick you mean your penis, that’s right?---Yes.
How far did he get towards your penis?---Probably a forearm length away.
And - - -?---At that stage I’d pushed myself away and tried pushing him away and started to pull up my pants.
I pause to note the following with respect to the passage italicised in the extract above. When first transcribed, the passage read, ‘wanted to go kneel down’. Counsel and the judge later discussed that portion of the transcript, resulting in the recording of that part of RLJ’s evidence being played back in court. After listening to the recording, the parties and trial judge agreed that RLJ had used the word ‘went’ rather than the word ‘wanted’. Thus, in his final address the prosecutor alerted the jury to this error in the transcript; and in his charge to the jury the judge directed:
… I am not going to summarise the evidence. If you want the evidence you can have the DVD and you have been given a transcript of it. Be careful of transcripts. There are a couple of errors in it, but we have already mentioned we are changing one anyway about that ‘he went’ instead of whatever it had. There are a couple of others.
If you have got any doubts about what was said, listen to the DVD. Do not rely on the transcript. …
Under cross-examination, RLJ agreed that in his narrative of events to the police there was no suggestion of the applicant ‘kneeling down or crouching down at any stage’. When defence counsel put to RLJ that he had given no evidence in the committal proceedings of any attempt to suck his penis, RLJ said he did not recall. Beyond these matters, however, RLJ’s account concerning the circumstances of charge 3 was not explored in any detail.
The applicant’s submissions
In the written case, counsel for the applicant directed no argument to particulars (a), (b) or (c) of the ground of appeal. The complaints embodied in those particulars can therefore be taken to have been abandoned.
With respect to particular (d)(i) of the ground — the evidence suggested that the applicant’s acts were ‘merely preparatory’ — counsel for the applicant submitted that, given the state of the evidence, the applicant had not performed the necessary ‘last act’ sufficient to establish an attempt to commit the offence.[6] The best the evidence gets, so counsel argued, is that the applicant wanted to either touch the complainant’s penis or suck it, but not both. The closest he gets to performing either act is ‘a forearm’s length away’, there being simply no evidence of where the applicant’s head or his lips were in relation to the complainant’s penis. Furthermore, so it was submitted, the evidence also fails the ‘unequivocal act’ test, because the applicant’s act in touching the complainant’s penis is ‘equally referable’ to that act, or to an attempt to place the complainant’s penis in the applicant’s mouth. One cannot properly infer from the evidence ‘which act the applicant was going to perform next’.[7]
[6]Counsel cited R v De Silva (2007) 176 A Crim R 238 and R v Barker [1924] NZLR 865 (‘Barker’).
[7]Counsel cited R v Nicholson (1994) 14 Tas R 351 and Barker.
So far as particulars (d)(ii) and (iii) were concerned — directed principally to the evidence going to the applicant’s intent — counsel for the applicant submitted that what is missing in the evidence is anything which might establish a clear intention on the applicant’s part to put RLJ’s penis in his mouth. RLJ’s evidence that the applicant asked ‘if he could play with me [sic] dick or suck my dick’, counsel submitted, suggest two different intentions ‘framed in the alternative’. Thus, so counsel submitted in the written case, ‘a jury could not be satisfied from the evidence what was going on in the applicant’s mind as he goes to kneel or crouch down’.
The respondent’s submissions
The respondent submitted in writing that the applicant’s contention that there was a dearth of evidence about whether the applicant actually did crouch or kneel before RLJ is without substance. It was submitted that the distance between the applicant’s body and RLJ’s exposed penis ‘is determinative of the issue’. When the proximity of a forearm’s length is considered in context, counsel for the respondent submitted, the only reasonable inference open is that the applicant had positioned himself thus so as to carry out his expressed desire to suck RLJ’s penis.
Further, counsel for the respondent submitted that the authorities cited by the applicant’s counsel were of little assistance in determining whether an attempt to commit the offence of taking part in an act of sexual penetration with a child under 16 had been established. Section 321N of the Crimes Act 1958 provides that person is not guilty of attempting to commit an offence unless the conduct of the person is more than merely preparatory to the commission of the offence, and immediately and not remotely connected with the commission of the offence. Counsel submitted that more persuasive guidance is to be found in what this Court said in Wilson[8] and Tadic.[9] When these authorities are considered and applied to the circumstances of the present case, the fact that the applicant got within a forearm’s length of RLJ’s exposed penis; had moved from a standing position to the left of RLJ to crouch or kneel before him; was already touching RLJ’s penis; had previously asked RLJ’s permission to suck his penis; and was only prevented from completing his criminal act because RLJ pushed him away, the applicant’s conduct is more than merely preparatory, satisfying the requirements of s 321N(1).
[8]R v Wilson [2004] VSCA 120, [24] (Buchanan JA).
[9]R v Tadic [2003] VSCA 28, [25] (Callaway JA).
In writing, counsel for the respondent also addressed arguments to the other parts of the ground of appeal which were not the subject of distinct submission by the applicant’s counsel. Given that those parts of the ground were, as I have said, effectively abandoned, I need not repeat the respondent’s submissions with respect to them.
Discussion
The principles that guide this Court in its consideration of a case such as the present were recently set out in Conolly:[10]
By virtue of s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), this Court must allow an appeal against conviction if the jury’s verdict ‘is unreasonable or cannot be supported having regard to the evidence’. The test to be applied under that statutory limb is as formulated by Mason CJ, Deane, Dawson and Toohey JJ in M.[11] Thus, ‘the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[12] The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury’s advantage in seeing and hearing the witnesses.[13] Generally, a reasonable doubt about guilt experienced by the appellate court is one that the jury should also have experienced. As was observed:[14]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
In written submissions, the respondent contended that ‘the test applicable to this ground’ was stated by Hayne J in Libke; that is, ‘the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’.[15] That statement is, however, apt to be misunderstood. Properly viewed, it does not constitute a gloss on the M test, let alone operate as a substitute for it. As this Court explained in Tyrrell:[16]
It is important to bear in mind that, in that passage, Hayne J did not restate the test in terms that were more stringent than that in which it was expressed in M. Rather, by emphasising that the question is whether the jury ‘must’ have entertained a doubt about the appellant’s guilt, Hayne J gave emphasis to the essential test, to be applied by the appellate court, as to whether it was ‘open’ to the jury to be so satisfied beyond reasonable doubt.
[10]Conolly (a Pseudonym) v The Queen [2019] VSCA 125, [7]–[8] (Priest, Beach and Kyrou JJA).
[11]M v The Queen (1994) 181 CLR 487 (‘M’).
[12]Ibid 493.
[13]M, 492–4; R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
[14]M, 494.
[15]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J) (‘Libke’) (emphasis in the original).
[16]Tyrrell v The Queen [2019] VSCA 52, [70] (Kaye, Niall and Weinberg JJA) (‘Tyrrell’).
At trial, the defence position was that none of the offending occurred. Although there was a significant attack on RLJ’s credit, there was little cross-examination directed to the circumstances of the attempt.[17] And at the end of the prosecution case, although defence counsel submitted that the prosecution case on charge 3 was ‘weak’, he did not submit that the applicant had no case to answer, conceding that the matter should go to the jury. So much is clear from the following exchange immediately upon the prosecution case being closed:
[17]See [15] above.
HIS HONOUR: Yes. What course do you want to follow?
[DEFENCE COUNEL]: It’s a bit weak on the attempt, Your Honour.
HIS HONOUR: I agree with that word, weak but I think it’s fair. I don’t think – that’s not my decision. That’s a jury question I think. I mean others might disagree later but from my point of view he’s asking his – on the evidence before this jury he’s crouched down. He said the closest he got was a forearm’s length, I think is what he actually said but I think that’s a jury question, isn’t it?
[DEFENCE COUNEL]: Yes. That’s a long way.
HIS HONOUR: Sorry?
[DEFENCE COUNEL]: That’s a long way away if you ---
HIS HONOUR: Well, it might be but that’s a matter for them.
[DEFENCE COUNEL]: Yes.
…
HIS HONOUR: … but yes, no, look I hear what you’re saying. I think I would use the word, weak, myself but I think as a matter of law it’s got to go to a jury. I can’t do that.[DEFENCE COUNEL]: I’m not calling evidence.
In my view, based upon on RLJ’s evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant had attempted the act of sexual penetration in charge 3, in that he attempted to put RLJ’s penis into his mouth.
If the jury accepted RLJ’s evidence on relevant aspects — and in my opinion it was open to them to do so — then it was open to the jury to find as follows:
· first, the applicant put on a pornographic movie as part of an attempt to seduce RLJ into sexual activity;
· secondly, the applicant invited RLJ to expose his penis;
· thirdly, the applicant asked RLJ whether he could ‘play with’ his penis;
· fourthly, while sitting on the bed, the applicant pulled down his pants and masturbated his own penis;
· fifthly, while standing in front of the chair where he had previously been sitting, RLJ pulled his own pants down;
· sixthly, the applicant then got up from the bed and asked whether he could ‘play with’ or ‘suck’ RLJ’s penis;
· seventhly, the applicant touched RLJ’s penis while standing in front of and to the left of the also standing RLJ;
· eighthly, while touching RLJ’s penis, the applicant asked to also suck it, and crouched or knelt down to do so, getting within a forearm’s length of RLJ’s penis; and
· ninthly, the applicant was prevented from sucking RLJ’s penis by virtue of the fact that RLJ pushed himself away, pushed the applicant away and started to pull up his pants.
From this evidence — which was not contradicted by any other evidence — it was open to the jury, in my view, to find that, having expressed the intention to suck RLJ’s penis — and while still holding it — the applicant knelt (or crouched) in front of RLJ’s exposed penis intending to suck it (and getting within a few centimetres of it), but was prevented from doing so by RLJ’s actions in pushing himself and the applicant away and pulling up his pants.
It was thus properly open to the jury to find that the applicant intended to commit an act of sexual penetration with RLJ by putting RLJ’s penis in his mouth;[18] and to find that the applicant’s act in kneeling or crouching in front of RLJ’s exposed penis while holding it — and having expressed the desire to suck it — was immediately connected with his intention to introduce RLJ’s penis into his mouth.[19] Given that it was open to the jury to find that the applicant was only prevented from introducing RLJ’s penis into his mouth by RLJ’s actions in pushing away and pulling up his pants, it was also clearly open to find that the applicant’s conduct was more than merely preparatory to the commission of the intended offence of sexual penetration of a child under 16.[20]
[18]See Crimes Act 1958, s 321N(2)(a).
[19]See Crimes Act 1958, s 321N(1)(b).
[20]See Crimes Act 1958, s 321N(1)(a).
For these reasons, the contention that the verdict of guilty on charge 3 is unsafe and unsatisfactory cannot be upheld.
Conclusion
Leave to appeal against conviction must be refused.
BEACH JA:
I agree. I would only say in addition that none of the matters referred to in particulars (a) to (c) of the applicant’s ground of appeal, which as Priest JA has observed in any event were not the subject of specific argument by the applicant, posed any impediment to the jury finding the applicant guilty on charge 3.
WEINBERG JA:
I agree for the reasons given by Priest JA that leave to appeal should be refused.
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