Santos (a pseudonym) v The King

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0129
TREVOR SANTOS (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, 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 WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2023
DATE OF JUDGMENT:	12 December 2023
DATE OF REASONS:	14 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 320
JUDGMENT APPEALED FROM:	DPP v Santos (a pseudonym) (Unreported, 22 June 2022, County Court of Victoria, Judge Ellis)

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CRIMINAL LAW – Appeal – Conviction – Incest and associated offences – Apprehended bias – Where trial judge in former capacity as Crown Prosecutor signed an indictment against applicant – Circumstances sufficient to give rise to apprehension of bias on part of judge – Appeal allowed – New trial ordered.

CRIMINAL LAW – Appeal – Conviction – Incest – Whether verdict unreasonable and cannot be supported by the evidence – Whether complainant gave evidence of penetration – Leave to appeal refused.

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Counsel
Applicant:		Ms M Cananzi
Respondent:		Ms J Warren
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
WALKER JA:

Following a trial in the County Court, on 22 June 2022, a jury empanelled to try the applicant found him guilty of sexual penetration of a child under 16[2] (charge 2); incest[3] (charge 3); sexual assault of a child under 16[4] (charge 5); and sexual penetration of his child or lineal descendant[5] (charge 7).[6]
[2]Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000, s 45(1).
[3]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 44(1).
[4]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 49D(1).
[5]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 50C(1).
[6]On 27 April 2023, the judge sentenced the applicant to a total effective sentence of 12 years and 3 months’ imprisonment, with a non-parole period of 8 years and 9 months.
Ultimately, the applicant sought leave to appeal against his conviction on three grounds:
1The verdict of guilty on charge 3 (incest) was unsafe and unsatisfactory as it was not open to the jury to conclude beyond reasonable doubt that the Applicant had sexually penetrated the complainant.
2The verdict of guilty on charge 3 (incest) is unsafe and unsatisfactory, in circumstances where it was not open to the jury to be satisfied, beyond reasonable doubt, that the conduct alleged occurred at a time when the offence of incest contrary to s 44(1) of the Crimes Act 1958 was in force.
5A substantial miscarriage of justice occurred as a result of the learned trial judge having, as a Crown Prosecutor, signed an indictment against the Applicant which contained the same charges as those the subject of the trial indictment.
The respondent conceded that the fifth ground should succeed, and that there had to be an order for a retrial. We consider that concession to have been properly made, and we will act upon it accordingly. Notwithstanding the respondent’s concession, it has been necessary to deal also with grounds 1 and 2, since success on either of those grounds would have resulted in an acquittal on charge 3. We would not, however, uphold those grounds.[7]
[7]The parties agreed that, given the respondent’s concession on ground 5, it was unnecessary for the Court to deal with two further grounds, which were formulated as follows:
3 A substantial miscarriage of justice occurred as a result of the failure of the trial judge to direct the jury that in order to return a verdict of guilty on either charge 3 or the alternative charge 4, it was necessary for them to be satisfied beyond reasonable doubt either that the alleged conduct occurred before, or after, 1 July 2017.
4 A substantial miscarriage of justice occurred due to the admission of the evidence of each complainant as tendency evidence.

Ground 5: Apprehended bias

Before being appointed to the County Court, the judge at the applicant’s trial was a Crown Prosecutor.[8] In that role, on 20 November 2020, she signed an indictment against the applicant for multiple sexual offences.[9] Two charges on that indictment were subsequently replicated as charges 1 and 2 on a later indictment — signed by a different Crown Prosecutor — upon which the applicant was ultimately tried. At the time that she presided over the trial, the judge had forgotten having signed the earlier indictment.
[8]Crown Prosecutors are appointed by the Governor in Council under pt 5 of the Public Prosecutions Act 1994.
[9]See Criminal Procedure Act 2009, s 159(1).
In this Court, the respondent fairly conceded that, in light of the fact that the judge, when a Crown Prosecutor, filed an indictment against the applicant containing two charges which were contested in the trial over which she presided, the circumstances gave rise to a reasonable apprehension of bias, vitiating the applicant’s convictions. As the respondent acknowledged, prior to filing an indictment against an accused person a Crown Prosecutor must (among other things) be satisfied that the evidence raises a reasonable possibility of conviction. Hence, it must be presumed that when she signed the indictment in her capacity as a Crown Prosecutor, the trial judge considered that there was a reasonable prospect of the applicant’s conviction on the two relevant charges.
As we have said, we consider the respondent’s concession to have been properly made. Recently, in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[10] the High Court considered a case in which a judge of an appellate court had previously appeared as counsel in opposition to proceedings brought by the appellant. In that case, the appellant had initially sought judicial review in the Federal Court of a decision of the Administrative Appeals Tribunal affirming a ministerial delegate’s decision not to revoke the cancellation of his visa. Having failed at first instance, the appellant appealed to the Full Court of the Federal Court. It transpired that one of the members of the Full Court, when Commonwealth Director of Public Prosecutions, had appeared for the Crown opposing an appeal by the appellant against his conviction for drug importation, that being the very offence that had resulted in the appellant’s visa cancellation (the subject of the application for judicial review). The judge refused the appellant’s application that he recuse himself; and, ultimately, the Full Court dismissed the appeal. An appeal to the High Court against the Full Court’s decision succeeded. Kiefel CJ and Gageler J observed:[11]
The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority[12] and has often been repeated.[13] The criterion is whether ‘a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’.[14] The ‘double might’[15] serves to emphasise that the criterion is concerned with ‘possibility (real and not remote), not probability’.[16]
[10](2023) 409 ALR 65 (‘QYFM’).
[11]Ibid 77 [37].
[12][Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at] [6], fn 41.
[13]See Charisteas v Charisteas (2021) 273 CLR 289; 393 ALR 389; 64 Fam LR 94; [2021] HCA 29 (Charisteas v Charisteas) at [11] and the authorities cited in fn 6.
[14]Charisteas v Charisteas at [11].
[15]CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; 375 ALR 47; [2019] HCA 50 (CNY17 v Minister for Immigration and Border Protection) at [18], quoting Islam v Minister for Immigration and Citizenship (2009) 51 AAR 147; [2009] FCA 1526 at [32].
[16]Ebner at [7].
In determining that a fair-minded lay observer might reasonably have apprehended that the judge might not bring an impartial mind to the resolution of the issues he was required to decide, Kiefel and Gageler J said:[17]
Though the lesson of Ebner is that each case must be considered by reference to the totality of its own circumstances, the combination of such considerations makes likely the conclusion that a fair-minded lay observer might reasonably apprehend that a judge who has been involved as an advocate in the prosecution of an individual in the past might have developed in that role, and might be unable completely to discard, a mind-set that is unfavourable to the individual to a degree incompatible with the dispassionate resolution of such question as the judge may be called on to decide in a subsequent case to which that individual is a party. The conclusion is even more likely where the earlier prosecution is in some way connected with the case before the court.
[17]QYFM, 79–80 [50].
Further, Gordon J observed the Full Court erred in hearing and determining the appeal with the former Director of Public Prosecutions as a member of the Court
because his Honour’s involvement in the appeal gave rise to a reasonable apprehension of bias and lack of judicial independence, due to the incompatibility between his earlier role as the Commonwealth Director of Public Prosecutions … appearing personally in the conviction appeal, and his later role as a judge of the Full Court of the Federal Court hearing the appellant’s migration appeal.[18]
[18]Ibid 82 [64].
In circumstances where the trial judge in the present case had, when a Crown Prosecutor, formed the view that there was a reasonable prospect of the applicant’s conviction on the two relevant charges, and then, as the trial judge, made evidentiary rulings that were adverse to the applicant and also sentenced him to a substantial period of imprisonment, a fair-minded lay observer might reasonably apprehend that the judge might not have brought an impartial mind to the resolution of questions the judge was required to decide.
Ground 5 must succeed.

Ground 1: An unsafe and unsatisfactory verdict?

The applicant contended that the conviction on charge 3 — incest by way of digital-vaginal penetration — was unsafe and unsatisfactory,[19] because it was not open to the jury on the evidence to be satisfied beyond reasonable doubt that the applicant penetrated the complainant’s vagina with his finger.
[19]See Criminal Procedure Act 2009, s 276(1)(a).
Charge 3 was laid under s 44(1) of the Crimes Act 1958,[20] which provided that a person ‘must not take part in an act of sexual penetration with a person whom he or she knows to be his or her child’. By virtue of s 35(1), ‘sexual penetration’ included the introduction (to any extent) of a part of the body into another’s vagina.
[20]See [23] below.
Charge 3 involved the applicant’s biological daughter, ‘FO’.[21] The prosecution alleged that, on an occasion when FO was aged ‘around 12’, the applicant drove her to a medical appointment. On the way home, the applicant stopped the car on the side of the road. He then leaned over to the passenger seat where FO was sitting, and penetrated her vagina with his finger under her shorts. FO also alleged that the applicant penetrated her vagina with his finger on a number of other occasions.
[21]FO was born in September 2005.
FO’s initial description of the events that founded charge 3 was in a VARE[22] with police conducted on 2 July 2021, when FO was aged 15.
[22]Video and Audio Recorded Evidence. See Criminal Procedure Act 2009, ss 366 and 367.
In the early part of the VARE, FO said that she understood that she was with police to talk about her dad’s ‘sexual abuse’, and how he touched her in areas she was not ‘comfortable’ with. When speaking of an event in November 2020, FO said the applicant ‘put his hand … where I didn’t want them [sic] to be’, and he ‘proceeded to – I dunno [sic], finger me or something’. The VARE interview continued:
Q12And when you said he put his hands where you didn’t want them to be, where did he put them?
AOn a very private area.
Q13Yeah. What part of your body was that?
AHere.
Q14Down here. Are you able to tell me the name of that body part or that area?
AMy vagina.
Q15Vagina. When you said that you think he fingered you, tell me more about that.
ALike, he just kept just – I don’t know how to explain it.
Q16And – yeah, it's important I guess that you know that at the moment we’re doing this video statement, but I want you to be as open as you can about how you explain something, even if it might be a little bit embarrassing. When someone says that someone fingered them, it could mean different things to different people. What did it mean for you?
APutting his fingers in a certain hole, multiple times.
Q17And what hole was that?
AThe hole in my vagina.
Later in the VARE, FO described the specific activity that was the basis of charge 3 as follows:[23]
[23]Emphasis added.
Q98… Has there been any other times where it’s happened anywhere else?
AThere was once, I think, way back from going to a doctor from Ballarat and it was just me and him, and he pulled the car over and – I don’t remember what he did, I just remember he done it and then he drove off and I sat in the car silent the whole time.
Q99And what was it that he done, that time?
AI think he fingered me again.
Q100When you were in the car and he fingered you, how did that start?
ALike, he just stopped the car, and I didn’t know what he was doing. And then he, like, stroked my head, and then it just happened.
Q101And where were you in the car, like, what seat were you in?
AThe passenger seat.
Q103Yeah. Where was it that he fingered you?
AThe middle of the highway, like, he just pulled over.
Q104Yep. And on your body, where was it that he fingered you?
AIn my vagina.
Q105O.K. And if you had your clothes on, how was it that he was able to do that? Explain that to me.
AI think I was wearing, like, shorts but, like, really baggy shorts, they were stretched enough.
At the special hearing conducted on 2 May 2022, FO was cross-examined by defence counsel about the occasion relevant to charge 3 as follows:
I want to ask you about another allegation that you talked to the police about, and that’s the trip from the doctor allegation?---Yes.
And the police asked you about the treatment from doctor from Ballarat, from a doctor in Ballarat, and they asked, ‘What was it that he done this time?’, and your answer was: ‘I think he fingered me again’?---Yes.
So, again, were you telling the truth at that time when you were speaking to the police?---Yes.
And at that time, you were not sure what it is that happened on the way from Ballarat?---Yes.
Yes, you agree with me that you are not sure because you said you think (indistinct)?---No, I don’t remember the details. I usually just close my eyes and (indistinct) this.
Because you close your eyes, you don’t know the – you don’t know whether he in fact fingered you or not?---No. I remember him touching me.
When you say, ‘I think he fingered me again’, you’re not sure when you’re talking to the police at that stage whether he in fact fingered you?---I just remember him touching that area. That’s – I’m not sure if he did it.
We also note that, in the course of cross-examination about a different charge, counsel for the applicant put to FO that when she said ‘I think’, she was ‘kind of guessing’. She responded that ‘[i]t was a statement in nervousness’.
In re-examination by the prosecutor, FO gave the following evidence:
I now want to ask you – [defence counsel] asked you about the time something happened when you visited the doctor in Ballarat?---Okay.
And you had told the police: ‘I think he fingered me again’ and you said to [defence counsel] you didn’t remember the details. You said, ‘I remember him touching that area, but I’m not sure if he did it’. And again, I just want to ask you, when you say, ‘I’m not sure if he did it’, what are you not sure about?---Like, what exactly he was doing. Like, I knew he was touching me, but I don’t know, like, what he was doing. I don’t know how to really explain it.
So, when you say you remember him touching that area, what area are you talking about?---My vagina.
In this Court, counsel for the applicant submitted that at no point in her VARE did FO give a clear and unequivocal account that penetration had occurred, capable of establishing guilt of the charged offence beyond reasonable doubt. FO’s evidence at the special hearing, counsel submitted, made the position no clearer. Counsel for the applicant submitted that, given the uncertainty inherent in the complainant’s evidence as to precisely what occurred on the drive home from Ballarat, it was not open to the jury to be satisfied that the applicant had sexually penetrated her as alleged. That was so, counsel submitted, even if the jury accepted that the complainant was a credible and reliable witness.
Making our own independent assessment of the evidence, however, we are of the view that it was open to the jury to be satisfied beyond reasonable doubt, upon the whole of the evidence, that the applicant digitally penetrated FO’s vagina as alleged.[24] FO made it clear in the VARE that the applicant ‘fingered’ her on multiple occasions, that activity involving the applicant putting his fingers in the ‘hole in [her] vagina’. When dealing with the specific incident the subject of charge 3, although FO said that ‘I think he fingered me again’, the jury may well have concluded that statement betrayed no uncertainty that she had been ‘fingered’, but instead simply reflected her manner of speech. In that regard, the jury had the advantage of seeing and hearing FO give evidence, an advantage that we did not have. When viewed in its entirety, we consider the plain thrust of FO’s evidence to be that, on the trip from Ballarat, the applicant did again what he had done previously, which involved touching her in the area of the vagina in the manner she had earlier described.
[24]M v The Queen (1994) 181 CLR 487, 492–4; Pell v The Queen (2020) 268 CLR 123; Dansie v The Queen (2022) 274 CLR 651; Lang v The Queen (2023) 97 ALJR 758.
Ground 1 is not made out.

Ground 2: Relevance of introduction of new offence of incest

As we have mentioned, the offence of incest in charge 3, upon which the applicant was found guilty, was laid under s 44(1) of the Crimes Act 1958. With effect from 1 July 2017, however, a new offence under s 50C — sexual penetration of a child or lineal descendant — was created.[25] Charge 4 on the indictment alleged an offence under s 50C, as an alternative to charge 3. Given the jury’s verdict on charge 3, no verdict was taken on charge 4.
[25]See Crimes Amendment (Sexual Offences) Act 2016, s 16.
Importantly, although the previous offence under s 44 and the new offence under s 50C have elements in common, and share the same maximum sentence, by virtue of s 50C(3) the new offence is now a standard sentence offence.[26] Hence, s 50C(3) provides that the standard sentence for an offence under subsection (1) is 10 years’ imprisonment if the person who was sexually penetrated was under 18 years of age. There was no equivalent provision in s 44.
[26]Subsection (3) was inserted by s 33 of the Sentencing Amendment (Sentencing Standards) Act 2017, with effect from 1 February 2018.

Ground 3 contends that the verdict of guilty on charge 3 is unsafe and unsatisfactory, because it was not open to the jury to be satisfied that the alleged conduct occurred when s 44(1) applied.
We would not uphold that ground.
In our view, the evidence established that the activity founding charge 3 must have occurred prior to 1 July 2017. In her evidence at the special hearing, FO said that the applicant’s sexual offending started when she was 11 years old, and that the particular event in charge 3 occurred in ‘the early stages of it happening’. In her VARE, FO said that the incident occurred when she was ‘around 12’. If the word ‘around’ is omitted, that would have placed the offending conduct in a period after the introduction of the new offence. The use of the word ‘around’ to qualify FO’s identification of her age as 12 left open the possibility, however, that FO was, at the time of her VARE, uncertain as to precisely what age she was at the time of the activity that founded charge 3, which is consistent with her having been 10, not 12, when the offending occurred.
Furthermore, it will be remembered that the activity in charge 3 was alleged to have occurred when the applicant was driving FO home after a medical appointment. Crucially, the records from the medical centre where FO was a patient showed that she attended on four occasions only in the relevant period: first, on 14 May 2016, at 7.13 pm; secondly, on 15 May 2016, at 2.05 pm; thirdly, on 4 October 2016; and, fourthly, on 23 April 2018. Significantly, the medical notes relating to the third occasion record that ‘Mum has concerns about [FO’s] behaviour’ — indicating that FO’s mother accompanied her to the appointment — and record that on the fourth occasion FO attended ‘with mum’, persuasively supporting the inference that the activity on charge 3 must have occurred at the time of FO’s first or second attendance in May 2016.
For these reasons, it was well open to the jury to convict on charge 3.

Conclusion

For the foregoing reasons, leave to appeal against conviction should be granted limited to ground 5, and the appeal allowed on that ground. There should be an order for a new trial.

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[2023] VSCA 320

12 December 2023