Worsnop v The Queen
[2010] VSCA 188
•28 July 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 989 of 2008
| MATTHEW LESLIE WORSNOP |
| v |
| THE QUEEN |
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| JUDGES | BUCHANAN and ASHLEY JJA and BEACH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 20 July 2010 |
| DATE OF JUDGMENT | 28 July 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 188 |
| JUDGMENT APPEALED FROM | R v Worsnop (Unreported, County Court of Victoria, Judge Wilmoth, 19 December 2008) |
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Criminal Law – Conviction – Stalking, indecent assault and rape – Rape – Misdirection as to effect of belief in consent – Section 37AA, Crimes Act 1958 – Whether proviso to s 568(1), Crimes Act 1958 should be applied – Application for leave to appeal granted but appeal dismissed.
Crimes Act 1958, s 38(2)(a), 37, 37AA, 37(1)(c)
R v Flannery [1969] VR 31.
R v Saragozza [1984] VR 187.
Weiss v Queen (2005) 224 CLR 300.
Criminal law – Sentence – Total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years – Manifest excess – Application granted, appeal allowed – Appellant re-sentenced to total effective sentence of 3 years and 11 months’ imprisonment – Non-parole period of 2 years and 3 months fixed.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr S Gillespie-Jones | Paul Vale |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Ashley JA, for the reasons he has stated, that the application for leave to appeal against conviction should be allowed, but that the appeal be dismissed. I also agree, for the reasons stated by Ashley JA, that the application for leave to appeal against sentence should be granted, the appeal instituted instanter and allowed and the appellant be re-sentenced as his Honour proposes.
ASHLEY JA:
Matthew Worsnop stood trial on a seven count presentment in the County Court. There were two complainants. In respect of one complainant, VH, the applicant was presented on a single count of indecent assault (count 1). He was acquitted. In respect of the second complainant, TH, the applicant was presented on a count of stalking (count 2), three counts of indecent assault (counts 3, 5 and 7), one count of rape (count 4), and one count of unlawful imprisonment (count 6). By majority verdict he was found guilty and convicted on counts 2, 3, 4 and 5, and was acquitted on counts 6 and 7. On 19 December 2008 he was sentenced as follows:
Count 2 - Stalking - 12 months’ imprisonment
Count 3 - Indecent assault - 18 months’ imprisonment
Count 4 - Rape - 3 years’ imprisonment
Count 5 - Indecent assault - 18 months’ imprisonment
The judge cumulated 6 months’ of the sentence on count 2 and 12 months of each of the sentences on counts 3 and 5 on each other and on the sentence on count 4. The total effective sentence was thus 5 years and 6 months’ imprisonment. The judge fixed a non-parole period of 3 years’ imprisonment.
Now the applicant appeals against conviction and sentence.
Conviction
Grounds
The grounds ultimately pursued were these:
1.A miscarriage of justice occurred by the learned trial judge failing to give a Kilby direction.
2.A miscarriage of justice occurred by the learned trial judge failing to give a balanced direction on delay.
3.A miscarriage of justice occurred by the learned trial judge failing to give an innocent infection direction.
…
5.A miscarriage of justice occurred by the learned trial judge failing to give a prior inconsistent statement direction.
6.A miscarriage of justice occurred by the learned trial judge failing to direct that the jury requisite intention of the applicant necessary to prove stalking had to be in existence at the time of the acts that the jury finds constituted stalking.
7. The count of stalking as directed upon was latently duplicitous.
8.A miscarriage of justice occurred by the learned trial judge failing to direct that the jury must be unanimous as to the kind of mental element proven for stalking.
9.A miscarriage of justice occurred by the learned trial judge directing that the applicant could be convicted of rape if the jury found that he believed that the complainant was consenting.
…
11.The learned trial judge erred in directing that if the jury were not satisfied that the words to the witnesses McCurdy or Jacobs were a complaint, then that evidence could not be used in any way.
12.A miscarriage of justice occurred by the prosecution failing to call the witnesses McCurdy or Jacobs.
13.A miscarriage of justice occurred by the learned trial judge failing to direct on the complainant’s motive to lie.
It is notable that grounds 1, 2, 3, 5, 6, 8 and 13 all allege a failure by the learned trial judge to give a necessary direction. In no case was exception taken at trial. As has often been said, that bears upon the likely substance of the ground now raised – although it is not decisive.
It is also notable that grounds 9 and 11 allege a defect in directions which were given. In neither case was exception taken at trial – again a matter which bears upon the likely substance of the ground now pursued.
In my opinion, for the reasons which follow, ground 9 is made out. I would nonetheless dismiss the appeal, so far as it concerns that ground, because in my opinion no substantial miscarriage of justice actually occurred. I consider that no other ground has been made out.
Circumstances
First, it is necessary to set out the circumstances of the matter.
The applicant was employed as a personal care attendant at a nursing home. The two female complainants were also employed at the home. The first complainant, VH, a woman aged about 50 employed as a personal carer, alleged that she was assaulted some time in 2006 when the applicant stood behind her and pushed his penis against her bottom. She made no complaint at the time. Her allegation came to light in July 2007, after the second complainant, TH, had complained to a superior about the applicant’s behaviour. VH was asked, after the applicant had been dismissed, whether she had anything to say or report. It was then that she made complaint.
The second complainant, TH, a woman of Vietnamese origin aged about 50 at the relevant time, a registered nurse, alleged that over that period between 22 April (when she began working at the home as a permanent employee) and 6 July 2007 the applicant followed her around whilst she attended to patients, watched her as she performed her duties, watched at handovers when he had no reason to be there, made remarks to her with sexual connotations, and loitered outside the home. That was the conduct the subject-matter of count 2.
With respect to count 3, TH said that on or about 21 June 2007 she was dispensing medicine at a patient’s bedside. The applicant approached her from behind, placed his hands on her, and pressed his pelvis against her bottom, saying ‘my cock is very hard, can you feel it?’.
Concerning count 4, TH gave evidence that she was attending a patient. The applicant came in, pushed her down onto the patient’s bed, said that his penis was very hard, asked her to suck it, and pushed it into her mouth. This incident took place the day after the events the subject of count 3.
According to TH, the applicant again assaulted her on about 5 July 2007. He came into a room where she was working, and said ‘my cock is very hard, do you want to feel it?’ She said ‘no’. He put his hand on the inside of her leg and moved it upwards towards her crotch. He also leant his body against her, rubbing his penis against her back.
I turn to counts 6 and 7. According to TH, the applicant entered a patient’s room where she was working. He closed the door, took his penis out, said that it was very hard, and asked her if she wanted to suck it. She said ‘no’, and attempted to leave. In due course, although he made some attempt to bar her way, she did so.
TH denied that any of the described conduct occurred with her consent.
The applicant denied that he had acted in the manner described by VH. He denied stalking TH. He admitted the substance of the conduct alleged by counts 3, 4 and 5, but alleged that it was consensual. He denied the substance of the conduct alleged by counts 6 and 7.
In describing the admitted acts as consensual, the applicant gave evidence that they had occurred against a background where, often, he and TH had engaged in sexually charged conduct towards each other - TH saying to him, for example, that she loved sex; and asking him whether he had been with an Asian woman. As to the impugned conduct itself, his evidence was that in each instance he had initiated it, but that TH had by her acts and words plainly consented to it. For her part, TH denied that there had been any background relationship as described by the applicant. And her account of the various incidents could not possibly have suggested consent on her part to what the applicant did.
Ground 9
This ground directs attention to the judge’s direction on the count of rape. Counsel for the applicant submitted in writing that -
4.1The direction that a jury finding that a positive belief that the complainant was consenting would not provide a defence is a misdirection. It is not possible for an applicant to have that belief together with a belief that the complainant might not be consenting. The two states of mind are mutually exclusive. It is a misdirection not to direct that such a belief in consent can merely be ‘taken into account’ and is not definitive …
Orally, counsel accepted the accuracy of the following passage in the judge’s charge.
The fourth element relates to the accused person’s state of mind about the complainant’s consent. The prosecution must prove that at the time of sexual penetration the accused was either aware that the complainant was not consenting or aware that the complainant might not be consenting.
When dealing with the so-called fourth element, the judge later gave this direction:
In this case, Mr Worsnop says that he believed that [TH] consented to the sexual penetration. He said she consented to having oral sex with him after he offered it to her. You will need to make an assessment of this evidence in order to determine whether the prosecution has proved this fourth element; that is, that the accused was aware that the complainant was not, or might not be, consenting.
You must consider any evidence concerning Mr Worsnop’s belief about [TH’s] consent, and determine whether the accused actually held it. Remember that the accused does not have to prove this. The law says that the accused’s belief in consent does not need to be reasonable, but in deciding whether or not Mr Worsnop in fact held that belief, you must consider whether his alleged belief that [TH] was consenting was reasonable in all the circumstances.
That reasonableness, or unreasonableness, of Mr Worsnop’s alleged belief, is no more than a guide to help you decide whether or not the accused had that belief.
However, in considering whether the belief was reasonable in all the circumstances, the law says you must have regard to whether the accused took any steps to find out whether the complainant was consenting and, if so, the nature of those steps.
If you are satisfied that [TH] was not consenting because you found that she submitted because of force, then in considering whether the belief in consent was reasonable, you must have regard to whether or not Mr Worsnop was aware that she had submitted because of force.
However, you should not focus on only one factor and ignore the rest. You must consider all the evidence, including anything said or done in the circumstances.
Evidence of Mr Worsnop’s belief in consent must be taken into account by you when determining whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not, or might not be, consenting. Even if you find that the accused did have such a belief, you will still need to decide whether the prosecution has proved this fourth element. You might find that the accused believed the complainant was consenting, but still be satisfied, beyond reasonable doubt, that the accused was aware of the possibility that the complainant was not consenting. In that case the fourth element would be met.[1]
[1]Emphasis added.
According to counsel’s submission, if the jury concluded that the applicant believed that TH was consenting to oral penetration, the Crown necessarily failed to establish the fourth element to the criminal standard. It mattered not that the belief was, let it be assumed, unreasonable. It followed that the last part of the charge just cited was erroneous.
In my opinion, counsel’s submission was correct. The learned judge could not be criticised for following, as she did, the charge book in giving the direction which I have italicised at [20]. Often enough, this Court has discerned error when a judge has departed from the charge book, and has encouraged adherence to its text. But here, I consider, the charge book was regrettably in error; and in consequence the direction was wrong.
Relevantly for present purposes, rape is defined by s 38(2)(a) of the Crimes Act as it was prior to amendment by Act 57/2007:[2]
(2) A person commits rape if –
(a)he or she intentionally sexually penetrates another person without that person’s consent while being aware that the person is not consenting or might not be consenting;
…
[2]See s 609(2) of the Crimes Act.
That definition was introduced by Act 81/1991.
Up until 1980, the crime of rape was not statutorily defined. The common law applied. In R v Flannery,[3] the Full Court described the mental element of the offence, and its relationship to the belief of an accused, this way:
It is established by authority binding on this Court that one of the elements to be established on a charge of rape is an intention on the part of the accused to have carnal knowledge without the consent of the woman concerned, and that this involves proof by the Crown either that the accused was aware that the woman was not consenting or else realized that she might not be and determined to have intercourse with her whether she was consenting or not: see R. v. Hornbuckle, [1945] V.L.R. 281; [1946] A.L.R. 71, and R. v. Daly, [1968] V.R. 257,[4] both decisions of this Court. The subject-matter of this essential ingredient of the crime is, accordingly, the knowledge or state of mind of the accused. Where there is absence of consent an accused’s belief, albeit mistaken in fact, that the woman was consenting to the act of intercourse necessarily relates to that subject-matter, that is to the element of intention involved in the crime. It is impossible to dissociate that intention from a genuine belief in the mind of the accused, even though mistaken in fact, that such consent existed. The existence of such a belief necessarily negatives an awareness that the woman was not consenting, or a realization that she might not be and a determination to have intercourse with her whether she was consenting or not.
[3][1969] VR 31, 33 (Winneke CJ, Little and Barber JJ).
[4]In Banditt v The Queen (2005) 224 CLR 262, a case concerning the requisite directions in a matter to which ss 61I and 61R of the Crimes Act1900 (NSW) applied, the concept of ‘recklessness’ set out in s 61R was said by (Gummow, Hayne and Heydon JJ, 272-273 [25]) to be embodied in what the Full Court had said in Daly [1968] VR 257, 258-259 concerning mens rea at common law. The formulation in Daly was re-stated by the Full Court in Flannery, and later in R v Saragozza [1984] VR 187. (My Footnote)
In 1980, an inclusive definition of rape was inserted into the Crimes Act.[5] It was concerned with the actus reus, not with the necessary mental element. So it said nothing to gainsay Flannery.
[5]By s 4 of the Crimes (Sexual Offences) Act 1980.
In R v Saragozza,[6] another strong Full Court said this about the mental element of the offence, and its relationship with the belief of an accused:
Once it is accepted that it is an element of the crime of rape that the accused either was aware that the woman was not consenting, or else realized that she might not be and determined to have intercourse whether she was consenting or not, the conclusion is inescapable that a man who believes that the woman is consenting cannot be guilty of the offence; for the existence of this belief is inconsistent with the presence of the mental element of the crime. Logic then insists that the reasonableness of the belief bears only on whether the accused in fact held it. As the Full Court observed in R. v. Flannery and Prendergast [1969] V.R. 31, at p. 33, the existence of a belief that the woman was consenting necessarily negatives an awareness that the woman was not consenting or a realization that she might not be and a determination to have intercourse whether she was consenting or not. The decision of the House of Lords in Director of Public Prosecutions v. Morgan [1976] A.C. 182; [1975] 2 All E.R. 347 marked no new departure so far as the law of Victoria is concerned. Their Lordships first determined that the crime of rape did have the mental element that had been recognized in this State for some years and then went on to accept that it followed as a matter of inexorable logic that a man who believed, reasonably or unreasonably, that he had consent was no rapist.[7]
[6][1984] VR 187.
[7]Ibid 193-194 (Starke, Kaye and Brooking JJ).
The definition of rape introduced by s 38(2)(a) of the 1991 Act in substance codified the common law conception of the offence so far as the mental element was concerned. In that connection, s 38 did not, however, stand alone. For, by s 37(c), a judge was obliged to direct a jury, in a relevant case, that –
(c)in considering the accused’s alleged belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances –
…
The effect of s 37(c) was not that an alleged belief must be reasonable, but rather that consideration whether the same was reasonable might influence a conclusion whether it had in fact been held. That position coincided with the common law. In Saragozza, the Full Court had said –
A mistaken belief in consent need not be reasonable: the reasonableness of the belief bears only on its existence.[8]
Later, in the context of what had become s 37(1)(c), the point was reiterated. See, for example, R v Munday,[9] which was cited and applied in R v Zilm.[10]
[8]Ibid 196.
[9](2003) 7 VR 423, 440 [47] (Callaway JA).
[10][2006] VSCA 72, [2]-[5] (Callaway JA) and [77]-[78] (Eames JA). I relevantly agreed with Eames JA.
By Act 57 of 2007, a new s 37 was substituted. The old s 37(1)(c) disappeared. The new s 37, in the nature of a statutory invocation of the celebrated dictum of Cussen J in Alford v Magee,[11] says this:
[11](1952) 85 CLR 437.
37 Jury directions
(1)If relevant to the facts in issue in a proceeding the judge must direct the jury on the matters set out in sections 37AAA and 37AA.
(2)A judge must not give to a jury a direction of a kind referred to in section 37AAA or 37AA if the direction is not relevant to the facts in issue in the proceeding.
(3)A judge must relate any direction given to the jury of a kind referred to in section 37AAA or 37AA to –
(a) the facts in issue in the proceeding; and
(b)the elements of the offence being tried in respect of which the direction is given –
so as to aid the jury’s comprehension of the direction.
A new s 37AA was introduced. It applied in the present case.[12] This is what it says:
[12]See s 609(2), Crimes Act.
37AA Jury directions on the accused’s awareness
For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider –
(a) any evidence of that belief; and
(b)whether that belief was reasonable in all the relevant circumstances having regard to –
(i)in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and
(ii)whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and
(iii) any other relevant matters.
The explanatory memorandum which accompanied the Bill said this about the directions required by what is now s 37AA:
The directions make it clear that evidence or an assertion of a belief in consent is to be taken into account when determining whether the prosecution has proven beyond a reasonable doubt that the accused was aware that the complainant might not be consenting. Evidence of, or an asserted belief in, consent, even if accepted by the jury, is not necessarily determinative of whether the prosecution has met this burden.
That is to say, belief in consent and awareness of the possibility of an absence of consent are not mutually exclusive. In circumstances where the prosecution has satisfied the jury beyond a reasonable doubt that an accused person was aware that the complainant might not be consenting, if the jury are equally satisfied in relation to the other elements, then they should convict irrespective of whether they accept the evidence or assertion that the accused believed the complainant was consenting.
The charge book, consistently with that series of assertions, contains the following passage, which was replicated by the learned judge in the present case:
[Evidence of/ An assertion] about the accused’s belief in consent must be taken into account by you when determining whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not or might not be consenting. Even if you find that the accused did have such a belief, you will still need to decide whether the prosecution has proved this fourth element. You might find that the accused believed the complainant was consenting, but still be satisfied beyond reasonable doubt that the accused was aware of the possibility that the complainant was not consenting. In that case, the fourth element would be met.
In my opinion, s 37AA did not have the effect asserted by the explanatory memorandum. Prior to its enactment, there was a long judicial understanding of the consequences of belief truly held for the purposes of the fourth element. It would have taken clear words to establish some new and less favourable position from the standpoint of an accused person. There was no presently pertinent change to s 38 itself. Then, as to s 37AA, it appears to me not to have introduced any new concept. It rather sets out, more expansively than did the old s 37(1)(c), considerations which a jury must bring to account in determining whether an asserted belief was reasonable. Conventionally, reasonableness of belief bears upon the question whether the belief was held. There is nothing in s 37AA which suggests the introduction of some new regime. It is not said, for instance, that an unreasonable belief is to be accounted no belief at all. Nor is it said, in terms, that a belief in consent, if held, is not determinative against the Crown of both aspects of the fourth element of the offence.
In the event, it appears to me that the position remains as stated in Flannery and Saragozza in the passages which I earlier cited. Once a jury accepts the existence of a belief in consent,[13] the Crown could not establish either that the accused was aware that the victim was not consenting or else that the victim might not be consenting.
[13]I am not to be taken as saying that it is for the accused to establish an asserted belief.
The error constituted a wrong decision on a question of law. Ordinarily it should lead to the application for leave to appeal being granted, the appeal being allowed and the matter being remitted for retrial. But then there is the proviso to s 568(1) of the Crimes Act. In my opinion it ought be applied, and the appeal should be dismissed. That is so for these reasons.
First, in some cases the nature of the misdirection in a judge’s charge will lead to the conclusion that the accused was simply denied a trial according to law – in which case the conviction should be set aside. But not every misdirection will lead to such an outcome. Weiss v The Queen[14] admits of there being cases in which, despite error, a court will conclude that no substantial miscarriage of justice has actually occurred. It may be apparent that the misdirection could not have been of any significance in the verdict which was returned.
[14](2005) 224 CLR 300.
Second, in considering whether, by its own independent assessment of the whole record of the trial (particularly the evidence properly admitted) the court is satisfied that the accused was proved beyond reasonable doubt to have been guilty, the court must take account of the ‘natural limitations’ of a paper appeal. Those limitations will be particularly apparent in a trial which involved issues of credibility.
Third, the record of the trial includes the fact that the jury found the accused guilty. The importance of the verdict will be the greater if the disclosed error would or should have had no significance in the jury returning the verdict which it did.
Fourth, in the present case, the belief of the applicant was entirely dependent upon the reliability of the evidence which he gave. On the complainant’s account, if it was accepted, there was no prospect of the applicant having a belief in consent. Neither the applicant nor his counsel advanced such a proposition at trial. The applicant, indeed, really gave no evidence about belief. Rather, he gave evidence about consent in fact, from which a belief in consent might be extrapolated.[15] Belief, in the event, was a sideshow to the only issue which was raised with respect to the count of rape – that is, whether there was consent in fact. There, two starkly different accounts were given. They did not stand alone. For on the complainant’s account, the applicant had given her unwelcome attention and had engaged in sexual conduct to which she had not consented; whilst on the applicant’s account there had been the steamy prelude which I described at [17] above, together with what he claimed, with respect to count 4, was evidently consensual sexual behaviour on the part of TH.
[15]The first sentence of the judge’s charge which I excerpted at [20] was correct in the sense that belief in consent was implicit in evidence given by the applicant of actual consent by TH.
Fifth, it is thus very clear that the misdirection with respect to belief held could not have been operative in the verdict of guilty on count 4. Two conclusions follow: (1) this was not a trial where the misdirection meant that there was simply no trial at all; and (2), the jury verdict shows that the jury must have found beyond reasonable doubt that TH’s account with respect to count 4 should be accepted.
The latter conclusion has these corollaries: (1) the jury resolved the specific credibility issue, with respect to the conduct constituting count 4, in favour of TH; and (2), the jury resolved the credibility issue with respect to the disputed prelude to that conduct (and then the factual dispute itself) in favour of TH.
Sixth, on a full consideration of the record, fortified by the jury’s verdict, I consider that the applicant was proved beyond reasonable doubt to be guilty on count 4. Though recognising that there were credit issues, I would reject out of hand the applicant’s account of the prelude to the events constituting count 4. Further, the account given by TH appears to me to have been inherently plausible. Applicant’s trial counsel sought to make something out of the failure of TH to immediately complain about what the applicant had done. That was a legitimate line of attack. But, to my mind, the explanation given by TH for such delay in complaint to her employer as there was,[16] and for the incomplete account which she said she gave to her friends, was plausible. I add that not much could in any event be made out of the fact that TH, on her account, said nothing to her friends about the oral sex which was the subject to count 4. For, after all, the fact that there had been oral sex was ultimately not disputed.
[16]It was multi-faceted. First, she gave evidence that her superiors, for one reason or another, were not available to speak with her immediately after each of the incidents occurred. Second, she was apprehensive that she might not be believed, particularly because the applicant was apparently on good terms with her superiors. Giving support to that apprehension, when she did report the incidents, on 9 July, her account was initially met with laughter. Third, and connected with the apprehension just mentioned, she was concerned not to lose her job.
Grounds 1 and 2
The offence allegedly committed by the applicant against VH was said to have taken place between 1 January and 31 December 2006. As I have already noted, it was not the subject of report until July 2007, and that was in respect to direct enquiry.
Trial counsel for the applicant did apply, in my opinion, for a Kilby[17] direction within the statutory context established by s 61(1)(b)(ii) of the Crimes Act 1958. He did so only in respect of the complaint by VH.
[17]Kilby v The Queen (1973) 129 CLR 460.
The judge gave an appropriate direction. The applicant was acquitted on the particular count.
Later in her charge, summarising the evidence, the judge reminded the jury that TH, on her account, had made a certain level of complaint to two friends in the period between 21 June 2007 and 9 July 2007.
Her Honour reminded the jury that the prosecutor had relied upon the fact that complaint had been promptly made as making it more likely that TH was telling the truth; whilst applicant’s counsel had submitted, to the contrary, that there had been earlier opportunities for complaint which had not been availed of.
In that context, the judge instructed the jury that the applicant’s credibility could be enhanced if the jury concluded that TH had made a relevant complaint at the first reasonable opportunity. But if no such complaint had been made, then her credibility could not be enhanced.
The judge did not give a Kilby direction in the event that the jury concluded that there had been delay in complaint by TH. Her Honour was statutorily obliged not to give such a direction except in the circumstances set out in s 61(1)(b)(ii) of the Crimes Act. The directions thus had a one-sidedness about them. But that was a consequence of the operation of the statute in circumstances where applicant’s counsel did not make application under s 61(1)(b)(ii).
In the event, neither of grounds 1 or 2 is made out. There was no statuary warrant for the judge giving any Kilby direction other than the one which she did; and the alleged ‘failure to give a balanced direction on delay’ was a consequence of the operation of the statute.
Grounds 5, 11 and 12
The judge directed the jury that if words which TH said she had used in telling two friends – McCurdy and Jacobs – about the applicant’s conduct did not constitute a complaint about conduct in respect of which charges had been laid, the evidence of what was said could not be used in any way. According to the applicant’s submissions, that direction was erroneous. The evidence of what had or had not been said could go to the question whether or not the offences charged had been committed.
Further according to the applicant’s submission, the judge’s directions ‘denied the legitimacy of any defence submission that the failure to confirm the complaint could lead to the establishing of a prior inconsistent settlement’.
Finally, applicant’s counsel submitted in writing that the Crown’s failure to call the two friends constituted a miscarriage of justice.
The factual underpinning of these grounds needs to be explained.
TH gave evidence that, at a time shortly after the commission of the offences comprehended by counts 3 and 4, she told a male friend that she had been harassed by a workmate. She said she spoke to a second male friend, to generally similar effect, after the last of the alleged assaults. She stated that she had said nothing to either man about the incident of oral penetration. In her evidence, she explained why she had not done so.
The informant contacted the two friends. Each of them said that he had no memory of TH having a conversation with him such as she described.
Neither of the men gave evidence. Evidently, this was a result of agreement between the prosecutor and applicant’s trial counsel. Counsel for the applicant orally conceded in this Court that he could not go behind that agreement. That is all that need be said about ground 12.
The informant gave evidence, without objection and without cross-examination, as to what the two men had told her. This did not mean that there was no evidence of timely complaint.[18] But their want of recollection of anything relevant having been said by TH meant that the Crown could not rely upon their evidence, in conjunction with that of TH, to advance her credibility. That want of recollection did not, on the other hand, establish that the applicant had made a prior inconsistent statement.
[18]R v J (No 2) [1998] 3 VR 602; R v GAE (2000) 1 VR 198, 228-229, [93]-[96] (Chernov JA).
It might be contended, however, that the evidence of TH established, on her own account, that she had made statements to her friends which were inconsistent with her evidence – for which reason an inconsistent statement direction ought to have been given, although none was sought.
Counsel for the Crown submitted that the evidence given by TH, by referring to and identifying the content of prior out of court statements, could not establish the making of a prior inconsistent statement. As I understand it, he argued that it would only show inconsistencies in her evidence.
The correctness or otherwise of that contention need not be decided. In my opinion there was really nothing to the submission for the applicant. A prior inconsistent statement direction was not sought, and understandably so. It was not in debate that the conduct the subject of counts 3, 4 and 5 had in fact taken place, whatever TH might or might not have said to her friends.
That leaves ground 11. In my opinion it is without substance. The judge’s instruction that the jury could not use the words allegedly spoken by TH to her friends ‘in any way’ unless they constituted a complaint about conduct the subject of charges laid addressed only the issue of the applicant’s credibility. The judge was saying that, unless the jury first found that TH had said something to her friends, and unless what was said could be categorised as a complaint, then what was said could not buttress her credibility. I do not accept that, at least absent very specific exception, the judge was obliged to direct the jury that what, if anything, TH had said could bear directly upon proof of guilt. It could not be suggested, I add, that her account constituted an admission against interest; for, after all, it was not in issue that the conduct alleged by counts 3 to 5 had in substance taken place. The area of conflict was consent; and in that connection TH had said nothing, on her account, which could assist the applicant.
Ground 3
In cross-examination, counsel for the applicant cross-examined VH to the effect that her complaint of contact with the applicant might have been influenced by knowing what TH had alleged against him. No such cross-examination of TH was possible, because her formal complaint was first in time.
The jury, as I have several times noted, acquitted the applicant on count 1. An ‘innocent infection’ direction could not have improved the outcome for the applicant in that connection.
The only question is whether such a direction should have been with respect to the evidence of TH touching counts 3, 5 and 7. I do not accept that any such direction – of course, none was sought – was required. R v Buckley,[19] relied upon by counsel for the applicant, addressed very different circumstances. The same may be said of the passage in the judgment of Callaway JA in R v Glennon (No 2)[20] cited by Nettle JA in Buckley.
[19](2004) 10 VR 215, 230-231 [50]-[53], (Nettle JA).
[20](2001) 7 VR 631, 685-689, [151]-[158]; see also 662-663 [73] (Winneke P and Ormiston JA).
Grounds 6, 7 and 8
Counsel submitted in writing that –
The course of conduct was defined to the jury as one or more acts, but an isolated act and unrelated activities without a continuity of purpose could not be a pattern of behaviour … For there to be a crime there had to be unity of the actus reus, and the intention. The charge suffers from the same defect as that in R v Trotter. The jury needed to be directed that they had to agree on the type of acts and intention. Some jurors may think that different episodes constituted a course of conduct with different mental states. Indeed, many jurors may not have been satisfied of the first episode was a part of a course of conduct, and others may be of the view that that episode was the only occasion when the applicant had the relevant intention. The subsuming of the issue makes the charge latently duplicitous. Hoang’s case has no application.
Orally, counsel submitted that Hoang had been concerned with the actus reus of the offence. It had not addressed the issue of what he submitted was the need for jury unanimity as to the offender’s particular state of mind.
The judge directed the jury that to find count 2 made out it must be satisfied that the applicant had engaged in a course of conduct which involved at least one of the kinds of act which I set out at [10]. It was not necessary for the jury to agree about ‘which particular acts or acts [the applicant] committed’, so long as the members of the jury ‘all [found] that he committed at least one of those relevant acts …’
The gist of the offence of stalking is that the accused engages in a course of conduct which includes acts of one or more specified kinds;[21] the conduct being engaged in with a particular intent. It is the course of conduct which is the actus reus, not the individual acts which make go to make up that course of conduct. For that reason, according to the considered obiter dictum of Neave JA in R v Hoang,[22] a trial judge did not err in failing to direct the jury that its members must be unanimous as to the particular acts which constituted the course of conduct.[23]
[21]Berlyn v Brouskos (2002) 134 A Crim R 111, 117 [24] (Nettle JA).
[22][2007] VSCA 118.
[23]Ibid [111]-[113].
I should adhere to her Honour’s conclusion. But in any event, it is not at all clear that in this case the learned judge did not direct the jury that it must unanimously fix upon a particular kind of conduct.
According to s 21A (2) of the Crimes Act, the course of conduct must be engaged in with one or other of two specific intents – either of causing physical or mental harm to the victim, or of arousing apprehension or fear in the victim for his or her own safety.[24] By s 21A(3), those two intentions are given expanded meanings.
[24]Or the safety of another person – an irrelevance in the present case.
In the present case, the learned judge directed the jury about the variable content of intention. She said that -
these three ways of satisfying this element of the offence are alternatives … you only need to find that one of these states of mind has been proven.
In that passage, her Honour did not squarely direct the jury that it must be unanimous as to the form of intent which it found proved. But neither did she direct to the contrary.
Counsel’s submission that the jury must be unanimous in its conclusion as to the form of the applicant’s intention had as its foundation the proposition that there must be unanimity as to the acts constituting the course of conduct. But that foundation cannot stand with Hoang.
Counsel further submitted that Hoang had not addressed the issue of intention. With respect, that is not so. Although the issue there raised about intention was different, Neave JA in substance endorsed a direction which had been couched only in objective language; a direction which said nothing about proof, in the alternative, of subjective intention, and which said nothing about a need for jury unanimity as to what intention had been proved.
In my opinion, quite apart from whatever is to be made of Hoang on the issue of intention, the applicant’s submission fails. As I have said, the question is not what intention accompanied individual acts, but rather what intention accompanied the identified course of conduct. In that connection, the fact that intent might be proved in different ways did not mean that the jury must be unanimous as to the form of intent which it found proved. There are other offences where the relevant intent may take different forms, and where it has not been held that the jury must be unanimous as to which form of intent has been proved.[25]
[25]Murder is an obvious example.
In the present case, I add, the criticism of the charge lacked practical substance. TH gave evidence about the offending conduct. The applicant sought to explain it. As to intent, it was not the Crown case that the applicant intended to harm or alarm TH. The Crown case essentially rested on the intention described by s 21A(3)(b).
Ground 13
Counsel for the applicant submitted that the learned judge should have given ‘a Palmer[26] direction’, because TH had been cross-examined to suggest that she had a motive to lie, and because this issue had been taken up by applicant’s trial counsel in his final address. The asserted motive to lie, as I understand it, was that TH would or might have feared being dismissed had it come to light that she was having a voluntary sexual relationship with the applicant at her workplace during working hours. For that reason, so it was said, she had a motive for describing the applicant’s conduct as a series of assaults.
[26]Palmer v The Queen (1998) 193 CLR 1.
Palmer was principally concerned with the question whether the accused man could permissibly be asked whether he could suggest any motive for the complainant lying in her evidence. The answer was ‘no’. But it was stated that there was no objection to the complainant having been cross-examined to show that she had some such motive. In that connection, Brennan CJ, Gaudron and Gummow JJ referred with apparent approval to what had been said by Hunt CJ at CL in R v Uhrig[27] as follows:
What this Court said in R v F and in R v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth.
[27]Unreported, Court of Criminal Appeal (NSW) 24 October 1996, 16-17.
In the present case, I see no error in the judge not having given such a direction in the absence of any request that she do so. The suggestion that TH had a motive to lie was not strenuously pressed, and the asserted motive was a nonsense. A direction would probably have served to underline the weakness of the point. TH took the initiative in going to her employer with an account of the applicant’s alleged misconduct. The evidence did not suggest that there was risk of it otherwise coming to light. The asserted motive to lie made no sense at all in light of what TH in fact did.
Conclusion
I would grant the application for leave to appeal against conviction, but dismiss the appeal.
Sentence
Grounds
The applicant relied upon the following grounds:
1.The sentence in its constituent parts and in its orders for cumulation was manifestly excessive.
2.The learned sentencing judge erred in finding as an aggravating factor the shock of a resident who did not give evidence.
3. The sentence offended against double punishment.
4.The cumulation of the indecent assault sentences was excessive given the cumulation of the sentence for stalking.
Resolution
Counsel for the applicant did not contend, in oral argument, that the sentence on count 4 was outside the range. It is thus necessary to consider the sentences
imposed on the count of stalking and on the counts of indecent assault. Counsel maintained that the sentences were manifestly excessive, as were the orders for cumulation. In the first connection, he developed a submission that the judge should not have treated the asserted shock of a resident who had witnessed one of the assaults as a circumstance of aggravation. His contention was that the resident had not given evidence, so that there was nothing to ground the judge’s finding. He argued also that the circumstances of the indecent assaults and of the stalking so overlapped that any cumulation in that connection would amount to double punishment.
In my opinion, there was nothing to the two arguments which I last noted. On the other hand, I consider that the sentences imposed on the count of stalking, and on the counts of indecent assault, were outside the range permitted by a sound exercise of the sentencing discretion. That is so despite making due allowance for the fact that, as senior counsel for the Crown submitted, these were very unpleasant offences committed in the workplace, where the victim was at the same time vulnerable and yet might feel inhibited from raising complaint by the prospect of job loss.
I would grant the application for leave to appeal against sentence on counts 2, 3 and 5, allow the appeal, and re-sentence the appellant. I would sentence him as follows: count 2 – 6 months’ imprisonment; count 3 – 8 months’ imprisonment; count 4 – 3 years’ imprisonment; count 5 – 8 months’ imprisonment. I would cumulate 3 months of the sentence on count 2 and 4 months of each of the sentences on counts 3 and 5 on each other and on the sentence on count 4. The total effective sentence would be 3 years and 11 months’ imprisonment. I would fix a non-parole period of 2 years and 3 months’ imprisonment.
BEACH AJA:
I agree with Ashley JA.
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