Schliefert v The King
[2024] VSCA 197
•12 September 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0112 |
| EDDIE (STEPHANI) SCHLIEFERT | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST, TAYLOR and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 September 2024 |
| DATE OF JUDGMENT: | 12 September 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 197 |
| JUDGMENT APPEALED FROM: | DPP v Schliefert (Unreported, County Court of Victoria, 7 February 2023, Judge Wraight) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of sexual assault but acquitted of sexual penetration alleged to have occurred immediately prior – Whether verdicts inconsistent – Clear logical and reasonable basis for different verdicts – Leave to appeal refused.
MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606, followed.
The Queen v Ware [1997] 1 VR 647; Crofts v The Queen [2018] VSCA 197; Sladek v The King [2024] VSCA 119, referred to.
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| Counsel | |||
| Applicant: | Ms A Roodenburg with Ms H Edwards | ||
| Respondent: | Mr J Dickie | ||
Solicitors | |||
| Applicant: | Victoria Legal Aid | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
TAYLOR JA
BOYCE JA:
The applicant faced trial in the County Court on an indictment containing two charges of sexual offending against a child complainant, BK. The offending relevant to both charges was alleged to have occurred in a single episode. The applicant was acquitted of one count of sexual penetration of a child under 16 (charge 1) and convicted of one count of sexual assault of a child under 16 (charge 2).
The applicant now seeks leave to appeal against conviction on the single ground that the guilty verdict on charge 2 is illogical and unreasonable in that it is inconsistent with the not guilty verdict on charge 1.
For the reasons that follow, we would refuse leave to appeal.
Factual background
The applicant[1] was 40 years of age at the time of the offending. He had green hair. The applicant was homeless and living on the streets of Geelong. BK was a 15 year old girl with an intellectual disability. The Department of Health and Human Services was involved in her care. She had a history of running away from home.
[1]For the sake of clarity, this judgment uses male pronouns with respect to the applicant. At a time after the offending the applicant identified as female.
BK and the applicant knew each other slightly from interactions in the Geelong area.
BK was reported to Victoria Police as a missing person on 1 October 2018 after running away from her accommodation. On the evening of that day she and the applicant set up tents at the rear of the Anglican Parish of Christ Church, Geelong. The prosecution case was that the applicant entered BK’s tent where he sexually penetrated her vagina with his fingers (charge 1) and touched her breasts and buttocks (charge 2). At that point BK kicked the applicant in the stomach and fled.
On 2 October 2018 BK was picked up by her sister’s ex-boyfriend. He took her to Geelong Police Station where she was identified as a missing person. She did not disclose the offending. Thereafter she was placed in residential care with MacKillop Family Services.
In a record of interview with police on 5 December 2018 the applicant denied the allegations.
Sexual assault was not left to the jury as an alternative charge to charge 1.[2]
[2]The prosecution did not seek the alternative verdict.
After six hours of deliberation the jury informed the trial judge that they were having difficulty reaching a unanimous decision and asked for a ‘recap’ of the charge. The judge gave a perseverance direction.[3] The unanimous verdicts were delivered the following afternoon.
[3]Black v The Queen (1993) 179 CLR 44 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); Jury Directions Act 2015, ss 64C and 64D.
The evidence
The complainant
BK’s evidence in chief comprised an audiovisual recorded statement (VARE) made to Detective Senior Constable Haley Kershaw of the Geelong SOCIT[4] on 6 November 2018.[5]
[4]Sexual Offences and Child Abuse Investigation Team.
[5]Pursuant to the Criminal Procedure Act 2009, s 367.
When asked what she had come to talk about BK said ‘about sexual behaviour that happened two months ago. His name’s Eddie’. She then described sexual touching. She said the applicant had come into her tent and started touching her – ‘grabbing my arse cheek and putting his hand up my top and his hands down my pants’. BK said that the applicant then wanted to have sex so she kicked him in the gut and left.
Later, BK described the incident in more detail. She said:
… I was, like, asleep, I’d fallen asleep.
And he decided to put his hands down my pants, like, even my undies too.
And then I felt something really warm but cold.
And it just – I found – and then he’s just, like, took his hands – like, moved his fingers around, and – and he decided to put his hands up my top and my, like, with his bra – like, put his hand under my bra.
And started, like, rubbing ‘em and, like, squeezing ‘em …
… like, to the point it left bruises. And, like, he started, like, grabbing my arse cheek, and then he started taking his pants off, and I go, ‘What the fuck are you doing?’ …
Later still, BK again said that she was asleep. She said:
And I - I heard, like, ‘cause I don’t notice anything, like, when, like, if I’m asleep.
And I heard something and it was weird, and then I felt, like, his hand touching me …
… and his hand coming up and down my pants …
… his top – my top and my bra and it was very, like, cold, but warm and …
Yeah, it was just – he just started grabbing my arse cheek and – yeah.
The following exchange then occurred:
Q.And you said that he put his hand down your pants and under your knickers, yeah. And then I think you said before that he was moving his fingers around?
Yeah
Q.Yeah. Can you tell me more about that?
I hate it, but I know I have to do it. So I was asleep and I woke up, like, kinda, like, half asleep. And then he just, like, decided to stop, but his hands were still in my pants.
Q.Mm’hm.
And he just – I fell back asleep and he just got, like, way deep.
Q.Mm’hm.
Like, his hands have gone right down …
Q. Mm’hm.
… and he just started fingering me.
Q.OK. What do you mean by that?
Like, moving his fingers really, like, fast, and he was just, like, I hate to, like, say what he was doing.
Q. Yeah.
He was, like, ‘That feels good’.
Q.He was saying that?
Yeah.
Q.Yeah. And when you say he fingering you (sic), moving his fingers fast, where were his fingers?
Right, like, down, it’s really …
Q.Yeah. So where were they touching, or where were they? Were they on your leg, between your legs, like, where – where were his hand …
Where my private parts are.
Q.OK, private parts, yeah.
Yeah.
Q. Do you know what your private parts are called?
Yeah.
Q. What’s it called?
My vagina.
Q.Vagina.
I don’t like saying it.
Q.That’s OK. And when you say, ‘moving his fingers around’ or ‘moving his fingers fast’ …
He was moving around and fast.
Q.Yeah. And where were the - where were his fingers?
In my vagina, like …
Q.In your vagina?
Yeah, like, just where you pee.
Q.Yeah. Sorry, I know it sounds funny that I ask questions, but I need you to tell me what you can remember and what actually happened.
Yeah.
Q. OK. So you said his fingers were – you said, ‘in my vagina’.
Yeah.
Q.Yeah. So …
‘Cause, like, I could feel it’.
Q. Mm’hm.
And I know the difference of what fingers are.
Q.Mm’hm.
And it was, like – and I had – wore undies then.
Q.Mm’hm.
Like …
Q. OK.
He just said, ‘It feels good with my fingers, and it would feel good with my dick inside you.”.
Q.He said that?
Yeah.
Q.Yeah.
And I was asleep, but I still heard it. I just didn’t wanna respond to it.
Q.Mm’hm.
But then, like, once he started getting up to my chest …
Q.Mm’hm.
… I just instantly woke up, and then I kicked him.
Aside from these descriptions of the offending, BK said that there was nothing else that she hadn’t talked about – ‘I can’t really – I vaguely remember, ‘cause of the drugs I was on’. She said that at the time of the offending she had taken three ‘MD caps’, which were pills that made her happy but also made her ‘really angry’ when somebody ‘pisse[d] [her] off’.[6] BK also said that at different times she took ‘bickies’, which were ‘a bit like ice’,[7] smoked marijuana and took Xanax and Valium.
[6]BK later agreed during cross-examination that ‘MD’ caps were MDMA.
[7]BK later agreed during cross-examination that ‘bickies’ were ecstasy.
Further, BK also said that she complained of the offending to both her mother and sister.
The cross-examination of BK was conducted at a special hearing on 1 December 2022 in the presence of an intermediary.[8] BK was then 20 years of age. BK said that she had told police that the applicant had sexually assaulted her when she attended the station with her sister’s ex-boyfriend. She said that she had complained to Opal Gallagher, a residential care worker at MacKillop Family Services, that she had been ‘sexually assaulted and raped’ and Ms Gallagher had then asked her where the applicant had touched her to which BK replied ‘down where the vagina is'. BK denied telling Ms Gallagher that she had been raped by a police officer. BK also denied that Amelia Sporanovic, another MacKillop Family Services worker, had later asked her about being raped by a police officer. BK said that she told her sister, TH, that she had been ‘pretty much raped and sexually assaulted’ by the applicant and that he put his fingers inside her vagina. She said that she did not really talk to her mother about it.
[8]Pursuant to the Criminal Procedure Act, s 389K.
BK also said during cross-examination that on the day of the incident she had taken a single MD pill, two ‘bickies’, a single Xanax and one and a half Valium tablets. She had not smoked marijuana. The Valium was taken after the incident. BK denied that the drugs had impacted her memory of it.
TH
BK’s sister TH gave evidence that she would occasionally see BK in the Geelong Mall area. Prior to BK’s 16th birthday BK told TH that she was sexually assaulted by the green haired man. BK did not give her any more details.
Opal Gallagher
Ms Gallagher gave evidence that on 22 October 2018 BK told her that she had been raped by a police officer. Ms Gallagher said that she completed an incident report and informed Ms Spiranovic. Ms Gallagher said that BK also told her that she had experienced sexual abuse from an uncle and family friends. Further, Ms Gallagher said that if a complaint had been made to her of sexual assault she would not ask the complainant for details of it.
Amelia Spiranovic
Ms Spiranovic stated that she spoke with BK on 30 October 2018 regarding the incident report completed by Ms Gallagher. BK told her that the alleged rape by a police officer had not occurred. BK said that she had been raped by her mother’s ex-partner and gang-raped by her step-brother’s friend. Ms Sprianovic also said that BK said that she had been sexually assaulted while she had been missing and that it had occurred two months previously. BK identified the offender as Eddie and believed him to be aged 36 years.
Ms Spiranovic said that as a result of the disclosures made by BK, she contacted DSC Kershaw. She said that DSC Kershaw told her that three past incidents of alleged sexual assault against BK had been reported to police and that inquiries would be undertaken with respect to the incident involving Eddie. Ms Spiranovic said that she then informed BK that SOCIT would investigate and she (BK) would have the opportunity to speak to DSC Kershaw about it.
DSC Hayley Kershaw
DSC Kershaw gave evidence that on 30 October 2018 she checked the missing person reports concerning BK. They did not contain any record of a complaint or investigation of sexual assault during the period BK was missing. She said that there had never been a complaint made to police concerning BK alleging rape by a police officer.
DSC Liana Goonan
DSC Goonan was the informant and conducted the record of interview with the applicant. She gave evidence of the investigation, including enquiries made as to the layout of the church grounds.
Agreed facts
A statement of agreed facts was read to the jury concerning the content of the sworn police statements of two deceased witnesses.[9]
[9]Pursuant to the Evidence Act 2008, s 191.
The 2019 statement of BK’s mother said that she once saw BK in the Geelong mall in the company of a guy with green hair. BK introduced him to her. The green haired man ‘seemed nice’ and told BK’s mother that he was looking after BK and that nothing would happen to her. BK’s mother said that BK seemed very comfortable with him. BK’s mother’s statement also said that BK had never told her about the green haired guy ever doing anything to her.
The 2019 statement of David Peek said that he was the warden/treasurer of Christ Church Geelong. Mr Peek said that there were CCTV cameras on the church and hall but that the footage was generally overwritten after a month. He said that from time to time people slept on the church grounds and that in October 2018 there were some tents in the grounds. Mr Peek recalled a man with green hair who seemed to be associated with others. He did not see a young female with them.
Applicant’s contentions
The applicant contends that no reasonable jury who had applied their minds properly to the facts and issues in the case could have reached the verdicts returned. The offences alleged occurred in close sequence on the same occasion. Convictions on both counts depended on the complainant’s evidence about that occasion being accepted beyond reasonable doubt. If BK’s evidence with respect to charge 1 was not accepted to the criminal standard, a reasonable doubt must have existed with respect to charge 2. Consequently the guilty verdict on charge 2 was illogical and unreasonable having regard to the acquittal on charge 1.
It is argued that the trial was conducted on an ‘all or nothing basis’. Neither counsel argued to the jury that there was any meaningful distinction between the charges. There was clear evidence supporting each charge. In particular, there was clear evidence of penetration in relation to charge 1. Each counsel argued that either the complainant’s evidence about the incident in the tent should be accepted to the criminal standard or not. Similarly, although the judge gave a separate consideration direction, the judge also told the jury that the clear issue in the case was that of whether the alleged offending against BK‘in the tent’ occurred, which was denied by the applicant.
The applicant further contends that that the verdicts are not explicable by resort to the jury’s ‘innate sense of fairness and justice’, in which justice was sufficiently met by a single conviction despite both charges being ‘technically proved’.
It is also argued that it is ‘difficult to resist’ the conclusion that the verdicts are an impermissible compromise given that they were returned the day after the jury indicated to the judge that it was having difficulty reaching unanimous verdicts.
Respondent’s contentions
The respondent contends that although BK’s credit was central to each charge, the jury was not required to accept everything – or conversely, nothing – that BK said about the incident in the tent. The applicant was not on trial for the ‘incident in the tent’, but for two specific offences alleged to have been committed therein. The acquittal on charge 1 does not necessarily indicate that the jury positively disbelieved BK’s evidence on that charge. Rather, the verdict means no more than that the jury was prepared to entertain a reasonable doubt as to guilt.
It is argued that the verdicts must also be considered in light of the directions the judge gave the jury. The judge instructed the jury that every element of the offences had to be proven beyond reasonable doubt – including sexual penetration with respect to charge 1; that it was wrong to assume that if the applicant was guilty or not guilty of one charge that meant that he was guilty or not guilty of the other and that it was open to the jury to differentially accept or reject parts of a single witness’ testimony.
The respondent submits that there were differences in BK’s evidence as between the two charges. In particular, BK gave evidence of sexual assault spontaneously but only referred to sexual penetration when specifically asked by DSC Henshaw late in the VARE and, when she did so, BK said a number of times that she was asleep when it occurred. In contradistinction, BK’s evidence was that charge 2 occurred when she fully woke up. Further, the complaint evidence was of ‘sexual assault’.
It is further argued that the jury’s verdicts may represent a ‘merciful’ view of the facts that justice was met by a single conviction. Similarly, it is submitted, it cannot be concluded that the different verdicts indicate impermissible compromise by the jury.
Analysis
Any submission that verdicts are inconsistent should be approached as a matter of ‘logic and reasonableness’[10] and with caution.
… [I]f there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.[11]
[10]MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 (Dawson, Toohey, Gaudron, Gummow and Kirby JJ) (‘MacKenzie’), 367 (Gaudron, Gummow and Kirby JJ).
[11]MacKenzie (Gaudron, Gummow and Kirby JJ) (citation omitted). See also MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ) (‘MFA’).
Inconsistency in the returned verdicts must amount to ‘an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’[12] before an appellate court would intervene.
[12]MacKenzie, 368 (Gaudron, Gummow and Kirby JJ).
In cases, such as the present, involving allegations of multiple sexual offences against a single complainant, verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable across the board.[13] That is so even where the acts constituting the offences alleged occurred in close temporal proximity.[14] Each case will turn on its own facts. The question remains whether there is a logical and reasonable explanation for the differing verdicts.
[13]MFA, 618 (Gleeson CJ, Hayne and Callinan JJ). See also TheQueen v Ware [1997] 1 VR 647 (Winneke P, Hayne JA and Hedigan AJA), 650 (Hedigan AJA, Winneke P and Hayne JA agreeing).
[14]See, for example, Crofts v The Queen [2018] VSCA 197 (Priest, Hargrave and Weinberg JJA) where differing verdicts were held to be consistent and Sladek v The King [2024] VSCA 119 (Emerton ACJ, Priest and Kaye JJA) where differing verdicts were held to be inconsistent.
In our view in this case there is.
At trial the applicant’s counsel attacked the credit of BK to found the argument that the jury could not accept her account of the ‘incident in the tent’ beyond reasonable doubt. Counsel developed that argument by highlighting BK’s drug use, her false statement to Ms Gallagher that she had been raped by a police officer coupled with her later denial of having done so and the inconsistencies in the complaint evidence both as to whether a complaint had been made at all and the content of it. The issues were fully ventilated before the jury.
As the respondent argues, the applicant was tried for two separate and different offences rather than for a single transaction in the tent. The jury was directed, correctly, that each charge was to be separately considered and that the prosecution was required to prove the elements of each offence beyond reasonable doubt. Those elements differed between the charges. The verdict on charge 2 indicates that the jury found BK to be both credible and reliable. That the jury acquitted the applicant on charge 1 says no more than that they were not satisfied to the criminal standard that sexual penetration had occurred.
The logical and reasonable basis for that finding is clear.
As is apparent from the extracts of the VARE above, BK did not give evidence of penetration until very late in the VARE[15] and then only after being directed to the topic by DSC Henshaw. Further, she said – more than once – that she was asleep at the time. This is in contradistinction to her spontaneous, repeated recitation of sexual touching of her breasts and buttocks by the applicant – offending she said occurred when she was fully awake. BK had consistently said that she was touched first on the vagina followed by the breasts then buttocks. Her description of being asleep or half asleep pertained only to the first. BK said ‘once he started getting up to my chest … I just instantly woke up’. There was, therefore a very clear difference in the quality of her evidence as between the charged acts which, although temporally proximate, occurred separately and in an unfolding fashion.
[15]The first evidence of penetration was given in answer to question 372.
And, the complaint evidence supports the allegation of ‘sexual assault’ but not necessarily sexual penetration. Notwithstanding BK’s evidence at the special hearing (some four years after the offending occurred) that she had told her sister that she had been ‘pretty much raped’ and that the applicant had put his fingers in her vagina, the evidence of TH was that BK had said that she had been ‘sexually assaulted’ by the green haired man. Similarly, despite BK’s evidence at the special hearing that she told Ms Gallagher that she had been ‘sexually assaulted and raped’ by the applicant, the evidence of Ms Gallagher was that BK did not make any complaint about the applicant at all. Further, BK also used the phrase ‘sexually assaulted’ when she told Ms Spiranovic of the incident with ‘Eddie’. The jury were entitled to use the complaint evidence not only with respect to BK’s credibility but also as evidence of ‘sexual assault’.[16] That BK complained to her sister and Ms Spiranovic of sexual assault but not penetration, when coupled with her evidence of being asleep at the time the penetration was alleged to have occurred, may well have caused the jury to reason that the prosecution had failed to prove sexual penetration beyond reasonable doubt.
[16]Evidence Act 2008, ss 60 and 66.
It follows that the verdicts in this case are obviously explicable and not inconsistent.
It is therefore unnecessary to address the arguments concerning ‘merciful’ verdicts or the import of the earlier indication by the jury of difficulty reaching unanimous verdicts.
Conclusion
Leave to appeal should be refused.
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