S C v The Queen
[2012] VSCA 286
•6 December 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0175 S APCR 2011 0176 | |
| SC | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN and REDLICH JJA and COGHLAN AJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 28 May 2012 | |
DATE OF JUDGMENT/ORDER: | 6 December 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 286 | |
JUDGMENT APPEALED FROM: | Unreported, County Court of Victoria at Melbourne, Judge Montgomery, Date of Sentence 19 August 2010 | |
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CRIMINAL LAW – Sexual offences – Fresh evidence – Availability at trial of the evidence – No likelihood that the evidence, if accepted, would have caused the jury to acquit the accused – Verdict is not inconsistent – Verdict is not safe or unsatisfactory.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T F Danos | Doogue & O’Brien |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions (Ms B Barby) |
BUCHANAN JA:
In 1979 the appellant was in the second year of study to become a Salvation Army officer. He lived at the Salvation Army Training College in Parkville. A husband and wife and their two daughters, S and J, aged eight years and 11 years respectively, also lived at the College.
The appellant was charged with a number of sexual offences against S and J. It was ordered that the counts concerning each complainant be tried separately.
At the conclusion of the trial of the counts relating to S, the appellant was convicted on ten counts of indecent assault. At the conclusion of the trial of the counts relating to J, the appellant was convicted on six counts of indecent assault and three counts of gross indecency with a child under 16.
The appellant has been granted leave to appeal against the convictions. In the appeal arising from the trial of the offences against S the grounds are as follows:
1.The fresh evidence of the affidavits of Myron Cochrane and the appellant provide an alibi for the appellant for the first six counts of the presentment.
2.The verdict of not guilty to count 10 is inconsistent with the guilty verdicts on counts 7 and 9.
3.The verdict is, in all the circumstances, unsafe and unsatisfactory.
In the appeal arising from the offences against J, the same grounds are advanced save that no complaint is made that there were inconsistent verdicts.
Evidence in the first trial
In the first trial the principal Crown witness was the complainant S.
She said that her family lived on the 8th floor of the College. The family arrived at the College on 13 March 1979 and were met by the appellant, who showed them to their quarters.
That night the complainant had dinner at 5 pm with her family. The dinner lasted approximately an hour. The complainant and her family returned to their rooms after dinner. The complainant put on her nightdress and went into the lounge room to watch television with her sister, J. The complainant’s parents left for a meeting.
While the sisters were watching television, there was a knock on the door. The complainant opened the door, but no-one was there. This happened a few times. The complainant heard a whistle.
Later, the complainant saw the appellant poking his head around from behind a wall that was near the stairs. He said, ‘Come here, I want to show you something.’ The complainant walked towards the appellant. The appellant grabbed her and pushed her into a corner, putting his arms around her waist. The appellant said, ‘Wait a minute I just want a cuddle.’ The appellant was rubbing his penis against her. It was hard (count 1: indecent assault). The complainant struggled and was able to get away.
The complainant went back to the lounge room. She heard further knocking and whistling. She opened the door and saw the appellant in the same position as before. He said, ‘Come here, I want to show you something.’ The complainant thought she might be able to see it from the door, but the appellant said, ‘No, you need to come here and have a look.’
The complainant again went towards the appellant. He opened the stairwell door and the complainant followed him. The appellant lifted up the complainant’s nightdress and put his hand down her pants and rubbed her vagina (count 2: indecent assault). The complainant broke free and went back to the lounge.
On another four or five occasions the complainant went to the alcove. Each time she went to the alcove, she saw the appellant. On each occasion he rubbed his penis against the complainant’s bottom and in respect of counts 4 and 6, he put his hands down her pants and rubbed her vagina (counts 3, 4, 5 and 6: indecent assault).
The appellant would join in playing games with the children. The games were chasey and hide and seek. After one game of chasey, about the end of March 1979, the complainant went into the dark room that had been set up to develop photographs. She went into the room with a number of other children and the appellant. The dark room was lit with a dull light so that only the outline of things could be seen.
S said that the appellant pinned her to the bench so that she could not move. The appellant started to rub his penis against her backside, then put his hand down her pants (count 7: indecent assault). The appellant put his fingers in her anus. It hurt. The complainant tried to move but the appellant told her to keep still and it wouldn’t hurt. The appellant’s fingers were in her anus for a few minutes. He then moved his hand towards the complainant’s vagina and put his fingers in her vagina (count 9: indecent assault). It was not there very long because the film started to develop; the appellant moved away to develop some photographs. The appellant sat back on his knees and pulled the complainant towards him, using the elastic on her nylon pants. He had her sit on his lap. The appellant had his penis out and tried a few times to put his penis in the complainant’s anus. He eventually succeeded. His penis was in her anus for a couple of minutes (count 10: buggery).
On another occasion about the beginning of August 1979, the complainant was in the dark room with the appellant and Kellie De Tracey. They were playing touch chasey and the appellant suggested they hide in the dark room with him. S had broken her ankle and was on crutches. They all sat down on the floor next to each other. The appellant tickled the complainant. The complainant giggled and told him to stop. The appellant tried to get his hands down her pants but she was sitting down and fought him off. He was only able to get his hand as far as her pelvic bone (count 11: indecent assault).
The complainant’s family moved away from the Training College for three months from September 1979. When they returned, they were on the fourth floor of the College. The appellant lived on the same floor.
One afternoon after school, the complainant walked past the appellant’s bedroom. The door was open. He said, ‘Come in, I want to show you something’. She went into his room. The appellant told her to sit on the bed and she did so. The appellant then told her to lie down. She felt the appellant pull her pants down. She said, ‘What are you going to do?’. The appellant said, ‘I just want to have a look’. The appellant knelt at the end of the bed and rotated his hand between the complainant’s legs. He got one of the complainant’s fingers and put it in his mouth. She saw him shaking (count 13: gross indecency). The appellant put two of his fingers in the complainant’s vagina (count 14: indecent assault).
In December 1979 the complainant went to a camp with her family in Parkdale. The appellant was also at the camp. The complainant was playing hide and seek. The appellant said, ‘Come and hide with me’. The complainant followed the appellant behind the dormitories. He stood facing her and said, ‘Now it’s your turn to touch me’ and tried to get the complainant to put her hands down his pants. She felt his penis (count 17: indecent act).
The complainant’s mother gave evidence of arriving at the Training College on 13 March 1979 with her family. They lived on the 8th floor. The appellant’s room was next to the complainants’ room. The appellant greeted the family on the day they arrived and showed them to their rooms. After dinner on 13 March 1979, the complainant’s parents put their son and daughters to bed.
When the family came back from outside training, they moved to rooms on the 4th floor. The appellant’s room was next to the complainant’s room. The appellant regularly played chasey and hide and seek with the complainants. At night the appellant would often come into the room when the girls were going to bed and tuck them in.
The complainant’s father said that his family arrived at the Training College in mid-March and lived on the 8th floor. The appellant also lived on the 8th floor. The appellant met the family and took them to the 8th floor to show them their rooms. The girls played with other children at the Training College. The only adult to play with them was the appellant.
On 13 March 1979 the children went to bed later than usual, about 9 pm. Their father left them in their bedroom after checking on them and went back to the 10th floor of the College.
When the complainants’ father put the girls to bed, usually at about 8.30 pm, the appellant would be there. The father said that the appellant would interfere as if he wanted to put the children to bed himself. The complainants’ father became annoyed.
The complainants’ father said that he saw the appellant quite a lot on the 4th floor playing games with the children after meal times.
Kellie De Tracey said that she lived on the 8th floor with her family. As a child she played games with the complainants. She said that she went into the dark room with the appellant but was not sure who else was there.
Godefredus Janssen was a cadet at the Training College in 1979. He remembered the family of the complainants living on the 8th floor. He saw the appellant and the complainants playing piggy back or tickling on the ground. On one occasion he saw the appellant on the floor and the girls on top of him. He sent the appellant off the floor and reported the incident.
Evidence in the second trial
The principal Crown witness was the complainant J. Her evidence largely reproduced the evidence given by her sister in the first trial.
J’s evidence as to the counts concerning her was as follows.
When the appellant greeted J’s family on their arrival at the College he took the girls to the window to show them the view. While at the window the appellant put his arm around J’s shoulder and started stroking her shoulder and back. J tried to pull away but was restricted by the appellant’s arm. The appellant stood behind her and placed his right hand on her shoulder. He stroked her back over her skivvy and then moved his hand under her skivvy and stroked her back. He put her hand under her skirt and stroked her bottom (count 1: indecent assault).
Later that evening, when the complainant and her sister returned to their room after dinner, they heard whistling in the passage. J opened the door and walked down to the alcove area. She saw the appellant there. The appellant asked her if she wanted to go exploring. J said that she did. He said, ‘You have to play a game first’. She said, ‘Ok, well what game is that?’. He said, ‘It’s called touch chasey’. She asked how you played that and the appellant replied, ‘Let me show you.’ The appellant crouched down, with the complainant between his legs. He touched her shoulders and back. He then moved his hands down the back of her legs and up under her skirt and touched her in the area of her vagina on the outside of her underwear (count 2: indecent assault).
The following day, arrangements were made by the complainant’s father for the appellant to teach her to develop photographs.
The appellant showed J the equipment in the dark room. The appellant said that he would take a couple of photographs of the complainant. He asked the complainant to lift her dress. He took a photograph of her. He then obtained a stool and asked the complainant to sit on it. He put his hand on her knees and prised her legs apart. He pushed her skirt up to her hips and said, ‘That’s the way I want you to be. Don’t move.’ He took two photographs (count 4: gross indecency).
After he took the photographs, the appellant turned the lights off and exposed the film. He pinned the complainant against a table in the room. He was standing behind her with his pelvis against her bottom. He leaned backwards and stroked the complainant’s shoulders and arms and then rubbed his fingers on the outside of her underwear before inserting his middle finger into her vagina (count 3: indecent assault).
On 17 March 1979 the appellant was playing touch chasey with the complainants. They met in the dark room. The complainant hid. The appellant was ‘it’. He found the complainant and put his hands down her pants and touched her backside (count 5: indecent assault).
On 27 March 1979, the complainant put a sanitary pad in her underwear. She heard whistling in the corridor. She saw the appellant in the alcove. He said he knew where the others were hiding. He said he would show the complainant ‘But first we have to play a game.’ The complainant was standing on the landing waiting for the appellant. The appellant grabbed the complainant by the arm and pushed her into the wall. He crouched in front of her with his legs spread apart and ran his hands over her chest and tried to kiss her. The appellant put his hands down the complainant’s pants and touched her pubic bone (count 6: indecent assault).
On 28 March 1979, the complainant was in the shower at about 6.30 to 7.00 pm. She turned around and saw the outline of a figure in the bathroom. She opened the shower curtain and saw the appellant. She yelled at him to get out (count 7: gross indecency).
In June 1979, the complainant was playing hide and seek. The appellant was ‘it’ and the complainant hid in a dark room behind the bar area. The appellant found her and said, ‘I know you’re in here.’ The complainant said, ‘No I’m not’ and got up to pass the appellant. The appellant caught her in a bear hug and pinned her against a table. He pushed his pelvis against her buttocks and stroked her on top of and then under her clothes. He ran his hands down her legs and then up her skirt. His fingers tickled the area near her vagina and then he got his finger and pushed it into her vagina (count 8: indecent assault). The complainant grabbed his arm to get his finger out of her. He said, ‘It’s your turn now’ and said ‘I want to show you something, let you see what you’re letting yourself in for’. The appellant undid his pants and showed her his penis (count 9: gross indecency). The complainant ran out of the room.
Members of J’s family gave evidence which largely accorded with their evidence in the first trial save that the complainant’s father said that the dinner on 13 March 1979 finished at about 7.00 to 7.30 pm, whereas in the first trial he said that the dinner finished at 8.30 pm. When cross-examined, he said that his evidence at the first trial as to the time the dinner ended was mistaken.
Again, the defendant called no evidence.
Fresh evidence
In an affidavit, the appellant deposed that he told his legal representatives that Myron Cochrane, a fellow trainee at the College, might assist his defence to the charges.
Alexander Stewart, a police sergeant, took part in the investigation of the charges against the appellant. Mr Stewart obtained a list of persons who were students at the College at the time the offences were alleged to have occurred. Mr Stewart gave a copy of the list to counsel for the appellant. Myron Cochrane’s name was on the list with the words ‘Whereabouts unknown.’ Mr Stewart recently obtained Cochrane’s address from a search of the VicRoads database.
Counsel for the appellant informed the Court that the appellant’s representatives considered whether to ask the police to locate Mr Cochrane. They decided, however, that they would not do so as they did not know whether the evidence Cochrane could give would assist the defence.
Fresh evidence will not be admitted to set aside a verdict unless the evidence was not available, or could not with reasonable diligence have become available, at the trial.[1]
[1]Gallagher v R (1986) 160 CLR 392; Mickelberg v R (1989) 167 CLR 259; Ratten v R (1974) 131 CLR 510; Miechel v R [2010] VSCA 225, [53].
In my opinion, the appellant has not established that the evidence Cochrane could give would not have been available at trial if the appellant’s representatives had exercised reasonable diligence. If the police had been asked to help to locate Cochrane, he would have been found. That course was considered but rejected for what were perceived to be tactical reasons.
A further requirement to be met in order to set aside a verdict on the basis of fresh evidence, is that an appellant must establish that there is a significant possibility, or perhaps a likelihood, that the evidence, if believed, would have led a jury, acting reasonably, to acquit the appellant if the evidence had been before the jury at trial.[2]
[2]Gallagher v R, above, 399, 402, 410, 421.
The appellant relied upon an affidavit and a statement made by Cochrane. Counsel for the appellant submitted that Cochrane could provide the appellant with an alibi for the offences alleged to have been committed on 13 March 1979. Cochrane said that he and the appellant attended the dinner to welcome new trainees that night. Cochrane said:
I cannot say … with 100 per cent certainty that I saw [the appellant] the whole evening.
He also stated that he had lived on the 8th floor of the College and said that the appellant at no time lived on the 8th floor.
In my opinion, there was no likelihood that if Cochrane’s evidence had been led at trial and had been accepted, it would have caused either jury, acting reasonably, to acquit the appellant. Cochrane’s account was consistent with the appellant absenting himself from the dinner for a time sufficient to commit the offences without being noticed by Cochrane.
The possibility that the complainants and their parents may have been mistaken as to the floor of the College on which the appellant lived may have affected their credit to some degree, but I do not consider it was likely to have led to the rejection of their evidence.
Inconsistent verdicts
Counsel for the appellant contended that the verdict of not guilty on count 10 was inconsistent with the verdicts of guilty on counts 7 and 9.
The offences were alleged to have occurred in the dark room where the appellant was developing film. As to count 7, the complainant said that the appellant inserted his finger in her anus and that it hurt. Count 9 was said to consist in the appellant moving his hand to the complainant’s vagina and inserting his fingers. Count 10 was said to be constituted by the appellant inserting his penis in the appellant’s anus where it remained for a couple of minutes.
The test to determine whether verdicts are factually inconsistent ‘is one of logic and reasonableness’ according to Gaudron, Gummow and Kirby JJ in MacKenzie v R.[3] Their Honours cited a passage from the judgment of Devlin J in R v Stone[4] as follows:
He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.
[3](1996) 190 CLR 348, 366.
[4]Unreported, 13 December 1954.
If there is a proper way by which this Court can reconcile the verdicts, that conclusion is generally to be accepted.[5] In the present case the complainant gave clear, direct evidence of the events said to constitute counts 7 and 9. Her evidence as to count 10, on the other hand, was less definite. The complainant said:
I’d realised that he had his penis out and he was he was trying to get it into my backside …
She was asked whether he was successful and she said:
Not the first time, no. But a few attempts and he did.
[5]MacKenzie v R, above, 367.
The complainant did not say that the appellant’s actions occasioned her any pain, unlike her account of the event constituting count 7. In my opinion, the jury may well have entertained a doubt as to whether the appellant succeeded in penetrating the complainant’s anus. The verdicts are capable of explanation in a logical and consistent manner.
Unsafe and unsatisfactory verdicts
Counsel for the appellant submitted that on the whole of the evidence adduced at each trial the jury must have had a reasonable doubt as to the appellant’s guilt.
Counsel for the appellant said that there were reasons to doubt the complainant’s account in the first trial and pointed to a number of inconsistencies in the Crown case.
In relation to the first trial, counsel said that although the events constituting the offences were said to have occurred in 1979, no complaint was made to the police until 2004.
The appellant was acquitted by direction on a count of unlawfully and carnally knowing the complainant as a consequence of the complainant failing to give any evidence of such an event. Counsel said that that cast significant doubt on the complainant’s credibility. The complainant’s father contradicted the complainant’s evidence by his evidence that the complainant and her sister were in their beds ‘pretty close to sleep’ when he left them on 13 March 1979. The complainant alleged that the appellant sexually assaulted Kellie De Tracey, but Kellie De Tracey gave evidence that no such assault occurred. A witness, Godefredus Janssen, said that he saw the appellant giving the complainant and her sister piggy back rides and tickling them on the ground. The complainant had no memory of any such activity.
There was a certain amount of conflict between the evidence given by the complainant and her sister surrounding the incidents that occurred on 13 March 1979. The complainant said that she went to the lounge room of her parents’ apartment to watch television, whereas J said that the complainants were both in their bedroom. The complainant said that she heard knocking on the door a few times, whereas J said that she heard a strange kind of whistling. The complainant said that she went to the door but observed no-one whereas J said that she went to the door and saw the appellant. The complainant said that she went out of the room four or five times whereas J said she only went out of the room on one occasion. The complainant said that her parents were in some other part of the building whereas J said that her parents were in their room across the corridor.
In relation to the second trial, counsel repeated his observation that the events occurred in 1979 and no formal complaint was made to the police until 2004.
The complainant J described two dark rooms, where some of the offending occurred, whereas other witnesses referred only to one darkroom. The complainant purported to identify her sister S in a photograph, whereas S said that the girl identified was not her. The complainant admitted giving a series of ‘mistaken’ answers in her evidence at the committal hearing. Counsel repeated the evidence of Godefredus Janssen observing the appellant giving the complainants piggy back rides and the girls sitting on top of him. The complainant had no memory of any such activity.
Again, counsel referred to the change in the evidence given by the father of the complainants as to the events surrounding count 2. Again, counsel relied upon the inconsistencies between the evidence given by the complainant and her sister.
In M v R[6] all the members of the Court emphasised that in determining whether a verdict is unsafe or unsatisfactory, an appellate court must bear in mind that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that the jury has the benefit of having seen and heard the witnesses.
[6](1994) 181 CLR 487.
In assessing the affect of inconsistencies in the Crown case, the jury were faced with events occurring some time ago to children aged eight and 11 years. In those circumstances, the discrepancies relied upon by counsel for the appellant were readily explicable.
In M v R, McHugh J said:
Although Mr Collins submitted that these ‘discrepancies’ were so grave that a reasonable jury must have had a reasonable doubt about M’s guilt, I cannot agree that the ‘discrepancies’ were such that a reasonable jury must have had such a doubt. K’s mistakes as to what was on television on the two nights in question and as to why Jonathan slept where he did and the ‘discrepancies’ in K’s various accounts of the incidents are not a sufficient reason for concluding that the jury must have had a reasonable doubt about the appellant’s guilt. Those matters say nothing about her honesty, which was the principal issue at the trial. K’s account was either substantially true or she invented it. This was not a case which turned on the degree of accuracy of the complainant’s recollection.
It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give, the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. In a case where accuracy of recollection is vital, discrepancies and inconsistencies in the witness’s account may make it impossible to accept that person’s evidence, no matter how honest he or she is to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness’s general account is persuasive, they may reasonably think that the discrepancies or even inconsistencies concerning details are of little moment.
In my opinion, those observations are relevant in the present case. The central issue for the jury was the credibility of each complainant. The matters of which complaint is now made were of relatively little moment if the jury accepted the general account given by each complainant. No inconsistency taken separately required rejection of the evidence of the complainant and even taken together, the inconsistencies, in my view, do not compel the conclusion that the jury must have had a reasonable doubt. Having considered the evidence as a whole, I am of the opinion that the verdicts can be supported.
For the foregoing reasons, I would dismiss the appeal.
REDLICH JA:
I agree with Buchanan JA.
COGHLAN AJA:
I also agree with Buchanan JA.
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