William James (a pseudonym)[1] v The King
[2024] VSCA 114
•27 May 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0034 |
| WILLIAM JAMES (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: | EMERTON P, PRIEST and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 May 2024 |
| DATE OF JUDGMENT: | 27 May 2024 |
| DATE OF REASONS: | 30 May 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 114 |
| JUDGMENT APPEALED FROM: | DPP v [James] [2023] VCC 150 (Judge Hawkins) |
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CRIMINAL LAW – Appeal – Conviction – Rape, intentionally causing injury and common assault – Whether judge’s answer to jury question as to dates caused miscarriage of justice – Whether impermissible for complainant in re-examination to read whole police statement aloud after cross-examination on part of contents – Whether verdicts inconsistent or unsafe and unsatisfactory – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr R Barton | ||
| Respondent: | Mr R Gibson KC | ||
Solicitors | |||
| Applicant: | Peter Baker & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
EMERTON P
PRIEST JA
KAYE JA:
Introduction
An indictment filed in the County Court charged the applicant with intentionally causing injury[2] (one charge – charge 1); common assault[3] (four charges – charges 2, 4, 7 and 9); rape[4] (three charges – charges 3, 6 and 8); and making a threat to kill[5] (one charge – charge 5).
[2]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[3]Contrary to common law. The maximum penalty is 5 years’ imprisonment.
[4]Crimes Act 1958, s 38 (as amended by the Crimes Amendment (Sexual Offences) Act 2016). The maximum penalty is 25 years’ imprisonment.
[5]Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.
Following a trial, the jury empanelled to try the applicant found him guilty of charge 1, and charges 6, 7, 8 and 9, but found him not guilty on charges 3, 4 and 5.[6]
[6]Subsequently, the judge sentenced the applicant to 12 months’ imprisonment on charge 1 (intentionally causing injury); 9 years’ imprisonment on each of charges 6 and 8 (rape); and 6 months’ imprisonment on each of charges 7 and 9 (common assault). Orders for cumulation resulted in a total effective sentence of 9 years and 9 months’ imprisonment, upon which the judge fixed a non-parole period of 6 years and 3 months.
The applicant sought leave to appeal against his conviction on charges 6, 7, 8 and 9,[7] relying on three proposed grounds:
1 The learned trial judge erred in her answer to a question of the jury about the dates relating to evidence of the alleged offending on Charges 8 and 9.
2 The verdicts on charges 8 and 9 are unsafe and unsatisfactory and are inconsistent with the acquittals on charges 3 and 4.
3 The trial of charges 6 and 7 miscarried by the complainant reading her police statement 5 May 2013 aloud to the jury.
[7]The applicant initially also sought leave to appeal against sentence, but abandoned that application during the hearing in this Court.
At the conclusion of oral argument on 27 May 2024, the Court made an order refusing the application for leave to appeal against conviction.
These are our reasons for that order.
The factual background
So as to understand the issues raised by the proposed grounds, it is necessary to summarise the factual background.
The applicant is of South Sudanese origin. He emigrated to Australia in 2005, and speaks English.
‘MC’, the complainant, is the applicant’s former wife (and mother of three of his children), and is also of South Sudanese origin. MC moved to Australia in October 2005 with her then husband and young child. At that time her English was poor. She separated from her husband in approximately September 2006 and commenced a relationship with the applicant shortly afterwards.
The applicant and MC came to know each other through the Sudanese community in Melbourne. They moved in together in January 2007, and had their first child together in August of that year. The offending which the jury found proven related to three separate incidents over a nine year period, when the applicant was aged between 27 and 35 years,[8] and MC was aged between 25 and 34 years.
[8]His date of birth is 1 March 1980.
Incident 1: Charge 1 – Intentionally causing injury (10 November 2007)
In the early hours of 10 November 2007, an argument erupted between the applicant and MC, relating to the applicant’s suspicion that MC’s former husband was HIV positive. The applicant pushed MC to the floor, choked her until she passed out and bit the back of her neck. He then called the ‘000’ emergency number claiming that MC was trying to kill him.
Police spoke to both the applicant and MC, but neither requested further police involvement. It seems that MC struggled to communicate in English at the time, and that the applicant did most of the talking. MC was taken by ambulance to hospital, where she told medical staff that she had pain as a result of domestic violence. She was observed to be ‘distressed’, and tender over multiple areas of her scalp and face, left wrist and ribs, an attending medico, Dr Seok Ng Lim, diagnosing ‘soft tissue injuries’. MC was discharged from hospital 14 hours after her arrival.
Some time after this incident, the applicant moved out of the family home. He moved to the Northern Territory and lived there between 2009 and 2013.
Incident 2: Charges 6 and 7 – Rape and common assault (30 April 2013)
In April 2013, when the applicant was living in Alice Springs, and MC was living in a rural Victorian city with their two children, the applicant called MC and told her he would be in town for nine days before going to Africa. The applicant asked MC if he could spend the night at her house so he could see the children before he left for overseas. MC agreed that the applicant could visit, so long as he slept in the bedroom with the children. She also informed the applicant that she was in a new relationship.
The applicant arrived at MC’s home three days later. MC showed the applicant to the children’s bedroom, where she had made a bed for him. The applicant was not happy with that arrangement. He said he was not a child and did not want to sleep in the children’s room.
Later that night, MC was asleep in her bedroom, alongside her infant daughter from her current relationship. The applicant entered her bedroom, demanding that MC have sex with him. An argument followed during which time MC told the applicant that she did not want trouble at her house and told the applicant ‘no’. In the course of the argument, the applicant grabbed MC by her arms and a struggle began. The baby fell off the bed and the applicant got on top of MC. He pulled MC’s underwear to the side with one hand and inserted his penis into her vagina with the other. MC bit the applicant on the stomach, face and chin, in an effort to stop him. After a short time, the applicant ejaculated inside MC’s vagina and got off her. MC told him she would call the police. The applicant then fled the house leaving his bags behind. MC took his passport from his bag and hid it. Police attended later that night.
About a week after this incident, the applicant went back to MC’s house and they argued about the whereabouts of his passport. The applicant called ‘000’. Police attended the house and the applicant told them that MC was in possession of his passport and would not return it. Police spoke to MC with the assistance of a male ‘Nuer’ interpreter. She disclosed that she had been raped by the applicant and refused to give his passport back until he faced court. During her evidence, MC said that the interpreter threatened her and told her it was culturally inappropriate to make allegations about the applicant to police. Later that day, on 5 May 2013, MC signed a ‘statement of no complaint’, requesting there be no criminal investigation into her rape allegation. Her only request was that the applicant not attend her home.
Over the following months, mediation was arranged involving senior male members of the Sudanese community, MC and the applicant, in an effort to reunite them as a couple. The mediation was unsuccessful in MC’s eyes, but the applicant asserted that he and MC were a couple again.
Incident 3: Charges 8 and 9 (January 2015)
The third incident of offending occurred on a day in January 2015. At approximately 3:00 am one morning, the applicant went to MC’s house. He knocked on the door and bedroom window before MC spoke to him through a security door. The applicant asked MC to open the security door. He then walked inside and straight into MC’s bedroom. MC waited in the lounge room.
Once the applicant realised that MC had not followed him, he went into the lounge room and they argued. The applicant quarrelled with MC about her not coming to the bedroom. She refused to have sex with him. The applicant became angry and punched MC in the face. MC then punched the applicant to the shoulder and chest area and a physical fight followed. The applicant picked MC up and put her over his shoulder, carrying her to the bedroom. While MC was struggling to get out of the applicant’s grip, they bit each other. The applicant then forced MC onto the bed and inserted his penis into her vagina. While the applicant was having sex with her, MC was fighting and struggling, telling him to stop. After a short time, the applicant ejaculated inside MC’s vagina and got off her.
The two continued fighting, until MC’s adult nephew, ‘JB’ — who was asleep in the house at the time and was awakened by the noise of the fighting — intervened and pushed the applicant and MC away from each other. JB argued with the applicant, who bit him on the thumb.
This offending was not reported to police at the time. In March 2015, MC discovered that the applicant’s rape had resulted in her becoming pregnant. She gave birth to a child in October of that year.
Investigation
In December 2016, MC made a report to police in relation to the rapes and assaults committed against her. In addition to the incidents described, MC alleged there was an incident in 2008 that resulted in charges 3 and 4, of which the applicant was ultimately acquitted.[9]
[9]See [30]–[32] below.
Police interviewed the applicant in July 2018. Although the applicant predominantly gave ‘no comment’ answers, he told the police the following: MC was his ex-partner; they had three children together (and he provided their names and birthdays); they separated after the third child was born in 2015; they were in a relationship when he was in Alice Springs, but was told by a member of the Sudanese community that MC was in another relationship; and MC called him to tell him that she was pregnant to another man.
Conviction ground 1: Judge’s answer to jury question as to dates on charges 8 and 9
JB, MC’s nephew, gave evidence that, on a Saturday in about February 2014, he went to visit MC at her home. At about 10:00 pm he awoke to noises of two people arguing loudly and angrily. He then went from the bedroom he was in to the living room where MC and the applicant were arguing and pushing each other. JB tried to calm them down, and ‘told them to leave each other alone, it’s not good to fight’. He got in the ‘middle’ of them because he ‘did not want them to push each other’. The applicant was very angry, and held JB’s thumb and bit it. JB then went back to his room and slept. When he awoke the next morning the applicant had left the house.
MC gave evidence that JB was present in her house when the events founding charges 8 and 9 occurred in January 2015,[10] and that the applicant ‘bit him in (sic.) the hand and the finger’.
[10]See [1820]–[20] above.
During the re-examination of JB, the jury asked for ‘confirmation of the date of the altercation between [MC] and [the applicant] was around February 2014’. After discussion with counsel, the judge clarified that the jury’s question ‘relates to the allegation where [JB] was said to be present’. The judge then told the jury that ‘the evidence appears to be that that was around January 2015, in accordance with the indictment’.
Orally, counsel for the applicant faintly argued the first ground. As we understood his written submissions, however, counsel contended that the judge’s answer to the jury’s question foreclosed the possibility of trial counsel exploiting the differences in dates of the alleged offending on charges 8 and 9 in his arguments to the jury. Indeed, he had sought a discharge of the jury, submitting to the trial judge that
I made a submission on that question about dates and it may be a different incident, it may be the same incident, it’s for the tribunal fact to decide. … I made a submission in answer to that question about differences in dates or when that incident exactly occurred is something that I wish to leave open when I go to the jury in my closing address. Regrettably, although the jury was seeking assistance, Your Honour has cured something that I wanted left open so that I could use it in my closing address, which is the date of when this witness – [JB] – recalls that his thumb was bitten …
There are at least five difficulties with the submissions advanced by the applicant’s counsel in support of this ground. First, notwithstanding the application subsequently made to discharge the jury, the applicant’s counsel had agreed with the answer to the jury question proposed by the judge in advance of the answer being given. Secondly, on the evidence at trial, there was only one occasion when JB intervened in an argument between MC and the applicant and had his hand or thumb bitten by the applicant, so that it was open to conclude — despite the supposed discrepancy in dates — that they were both referring to the same occasion. Thirdly, given that the date of the offences in charges 8 and 9 were not material particulars,[11] it mattered little (if at all) that JB put the relevant incident as occurring in February 2014, while MC put it as occurring in January 2015, so long as the jury were satisfied beyond reasonable doubt that the events described by MC occurred (as the jury must have been). Fourthly, any discrepancy in the dates could have had only minimal (if any) effect on either MC’s or JB’s credibility. It is thus impossible to conclude that justice miscarried. Fifthly, and in any event, any discrepancy in the evidence concerning dates could only have operated to the advantage of the applicant.
[11]See Farrugia v The Queen [2023] VSCA 248, [34]–[38] (Priest, Macaulay and Taylor JJA).
There was nothing in the first ground.
Conviction ground 2: Claimed inconsistency of verdicts
The jury found the applicant not guilty of charges 3 and 4. In her evidence, MC described the circumstances of the alleged offending as follows.
MC said that in January 2008 she was at home when the applicant knocked on the door, wanting to bring nappies for the baby. When MC opened the door, the applicant took the items to her bedroom. The applicant called MC into the bedroom to look at the items, then took hold of her with both hands. MC fought to get away but the applicant was too strong. The applicant then dropped her onto the bed. MC said, ‘leave me alone’, but the applicant forcefully removed her trousers and underwear. The applicant put his penis in her vagina while she was on her back — he was ‘forcing’ her — and ejaculated quickly. When the applicant left, MC was upset, but she did nothing because she ‘had no power’. As a result of the ‘forced … no-consent sex’, MC became pregnant, and gave birth to a child on 28 October 2008.
MC also gave evidence that, although she did not report the ‘incident’ to the police, the ‘same day’ she ‘told a lady by the name of [‘MB’]’ what had happened. Significantly, however, in a statement to police — part of which by consent was read into evidence by the prosecutor — MB said that ‘at no point did [MC] ever say that she was raped by [the applicant]’.
Although the applicant’s counsel advanced little in oral argument in support of ground 2, in written submissions he contended that the verdicts on charges 8 and 9 are unsafe and unsatisfactory and are inconsistent with the acquittals on charges 3 and 4. Counsel submitted that, apart from the fact that JB was supposedly present in MC’s house when the incidents founding charges 8 and 9 occurred, the incidents upon which charges 3 and 4 are based are ‘strikingly similar’. The similarities between the two occasions are that MC allegedly resisted the applicant in the bedroom; had her pants or clothing removed by the applicant; was raped by the applicant culminating in ejaculation; and became pregnant and gave birth to a boy on each occasion. Further, counsel submitted that MC’s evidence was that the applicant bit JB in January 2015, but JB gave evidence that the applicant bit him in February 2014.
Based on the matters set out immediately above, counsel for the applicant submitted in writing in support of the second ground that the verdicts on charges 8 and 9 ‘are unsafe because they contradict the verdicts on charges 3 and 4 and perhaps lead to a suggestion of a compromised verdict upon deliberations’, in circumstances where ‘a compromised verdict cannot stand’. In the alternative, counsel submitted that if the jury had a reasonable doubt about the applicant’s guilt on charges 3 and 4, ‘then they should have entertained similar reasonable doubt about charges 8 and 9’.
Rather than suggesting illegitimate compromise, we consider that the different verdicts on charges 3 and 4, and 8 and 9, are consistent with the jury approaching the evidence carefully and rigorously. Indeed, the verdicts are easily reconciled, and are consistent with logic and reasonableness.[12] In our opinion, it is readily apparent that the jury — as they were directed to do — separately considered the evidence admissible on each set of charges and reached separate verdicts based on that evidence.
[12]MacKenzie v The Queen (1996) 190 CLR 348, 366 (Gaudron, Gummow and Kirby JJ); Tyrell v The Queen [2019] VSCA 52, [75] (Kaye, Niall and Weinberg JJA).
While the events founding charges 3 and 4, and those founding charges 8 and 9, both involved a penile-vaginal rape and an assault in MC’s bedroom, the circumstances of charges 3 and 4 were very different to those of charges 8 and 9. Charges 8 and 9 occurred when MC’s nephew was present in the home, whilst nobody else was in the near vicinity of the offending alleged in charges 3 and 4. JB remembered the occasion because the applicant bit him on the finger or hand; and, notwithstanding that he did not witness the actual offending, he overheard an argument between MC and the applicant consistent with the argument MC had described in her evidence.
Albeit that JB said the relevant incident occurred in February 2014, and MC nominated January 2015 as the relevant time, it was open to the jury to conclude that, despite the temporal discrepancy, both were describing the same occasion. In those circumstances, it was open to the jury to conclude their evidence was mutually supportive. JB’s evidence gave weight to the evidence concerning charges 8 and 9 which was absent in relation to the evidence on charges 3 and 4.
And there is a further reason for distinguishing the verdicts on charges 3 and 4 from those on charges 8 and 9. With respect to the events founding charges 3 and 4, MC’s evidence that she had told MB what had happened was contradicted by MB, who said that MC had never complained to her that she had been raped by the applicant. Plainly, in their separate consideration of charges 3 and 4, the jury were entitled to take that contradiction into account when arriving at their verdicts on those charges.
In our view, the verdicts on charges 8 and 9 are well-supported by the evidence. There is nothing in the circumstances of this case to suggest that the jury, acting rationally, ought to have entertained a reasonable doubt about the applicant’s guilt.[13]
[13]M v The Queen (1994) 181 CLR 487, 493–5 (Mason CJ, Deane, Dawson and Toohey JJ); Pell v The Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
Ground 2 could not succeed.
Conviction ground 3: Complainant reading her police statement
As we have indicated, following the incident that was the subject of charges 5, 6 and 7, MC made a statement of no complaint to police with the assistance of an interpreter on 5 May 2013, the relevant parts of which are as follows:
3. On Saturday the 27th day of April, 2013, [the applicant] rang me from Alice Springs. He is now living there. He wanted to come and see the kids. I thought that was ok. On Tuesday the 30th day of April, 2013, [the applicant] came to my home. I had organised a bed in one of the childrens (sic.) rooms for him to sleep. That night [the applicant] came into my bedroom and demanded that I have sex with him. I said no, that we are not together anymore. [The applicant] told me that he would kill me if I didn’t give him sex. I told him that I didn’t want trouble in my home and that I did not give permission for him to have sex with me. [The applicant] then had sex with me. I didn’t want trouble and I was scared. I just let him get it over and done with but I told him that I did not want to. When I told him that I was going to ring the Police, he ran away from the house.
4. I do not want to have this matter investigated. I do not want to have to go to court as I just want to be safe and just want [the applicant] kept away from me. I understand that by requesting that Police take no further action in relation to my complaint, that forensic evidence that has been collected in this case may be destroyed. I under stand (sic.) that if this evidence is destroyed it will not be able to be recovered and this may affect the likelihood of a successful outcome to the investigation or any prosecution should I later ask for the case to be reopened.
5. I have not been forced into this decision and just want an intervention order to keep [the applicant] away from me and away from my home. I have made this decision of my own free will and I am happy with the way Police have handled this matter.
At trial, counsel for the applicant cross-examined MC on aspects of the statement; in particular, the contents of paragraphs 4 and 5:[14]
[14]Emphasis added.
On the page that you’re looking at, do you see your signature, and underneath that you see the date, 5/05/2013?---Yes. I can see that.
Okay. If you turn to the page prior, please – turn back one page. Can you see paragraph 4 there, approximately?---Yes. I can see.
Can you read – do you see that it says, ‘I do not want to have this matter investigated’; do you agree that’s what it says?---Yes. I agree.
And then do you agree the next sentence is, ‘I do not want to have to go to court as I just want to be safe and just want [the applicant] kept away from me’; do you agree what’s what it says?---Yes. I agree.
Now, when you were making this statement, you were trying to be truthful with the police, weren’t you?---Yes.
And you signed that statement knowing that it was true and correct, didn’t you?
---Yes. I agree.
And you signed that knowing that there could be penalties if it was not true?
---Yes. I’m aware.
If I could take you to paragraph 5, which is further down. Do you agree it says, ‘I have not been forced into this decision and just want an intervention order to keep [the applicant] away from me and away from my home’; do you agree that’s what it says?---Yes. I agree.
So it’s true, isn’t it, that you have not been forced into the decision to not want to have the matter investigated?---Could you please repeat that again.
It’s true, isn’t it, that you have not been forced into this decision not wanting the matter investigated?---Yes. That’s true.
And it’s true that you have made that decision of your own free will, isn’t it?
---Yes.
And when you were talking to the police, they told you that if there’s forensic evidence that’s been collected, it was going to be destroyed – it may be destroyed; do you agree the police told you that?
INTERPRETER: Could you please repeat that, please.
[COUNSEL]: Do you agree the police told you that if there is forensic evidence about the alleged rape on the Tuesday prior, if it has been collected, that it may be destroyed; did the police tell you that?---The reason I actually backed off of my decision of – initial decision of the matter was the fact that the interpreter threatened me, telling me it’s not good for me to do this. So it wasn’t what I was coming to say. I was told by the interpreter – I felt threatened at that point.
In re-examination, the prosecutor had MC read the whole of the statement, including paragraph 3 in which the alleged rape is described (albeit her reading of the statement was not wholly verbatim). Counsel for the applicant did not object to this course.
Counsel for the applicant in this Court submitted in writing that the prosecutor was not entitled to re-examine MC on the statement to restore credibility because there had been no attack on her credibility in cross-examination. Having MC confirm in cross-examination that she was not forced to make a statement of no complaint, counsel submitted, did not amount to an attack on MC’s credibility. Furthermore, counsel submitted, the prosecutor was not entitled to have MC read aloud her statement in English when she had given evidence through an interpreter. Counsel submitted in writing that ‘the emotive and disjointed reading of the statement’ — which was done ‘to prejudice the Applicant by inviting feelings of sympathy for the complainant’ — ‘was to highlight matters that were not relevant to the statement’. The applicant’s counsel finally submitted that ‘the implicit invitation by the learned prosecutor for sympathy has affected the jury and the trial on charges 6 and 7 miscarried’.
We consider that trial counsel’s cross-examination of MC on the statement could only have been relevant because it may have affected an assessment of her credibility.[15] The purpose of the cross-examination can only have been to found an argument that, had the applicant in fact raped her, MC would not have told police that she did not want to have the matter investigated. That being so, it was legitimate for the prosecutor to re-examine MC on those parts of the statement in which she had made it clear that she had submitted to non-consensual sex with the applicant because she was scared. Indeed, in oral argument the applicant’s counsel accepted that, in view of the matters raised in cross-examination, it was legitimate for the complainant to be asked to read her statement in the course of re-examination.
[15]Evidence Act 2008, ss 101A, 103.
Ground 3 was without substance.
Conclusion
For these reasons, we made the order refusing leave to appeal against conviction.
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