R v McKenzie-McHarg [2008] VSCA 206 (17 October 2008)

THE QUEEN
THE QUEEN

v

GARY McKENZIE-McHARG
GARY McKENZIE-McHARG

JUDGES:	VINCENT and WEINBERG JJA and PAGONE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 September 2008
DATE OF JUDGMENT:	17 October 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 206

CRIMINAL LAW – Conviction – Indecent acts involving a child under the age of 16 – Direction to jury – Uncharged acts.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions

For the Applicant	Mr P F Tehan QC	Macgregor Solicitors

1 I agree that the application for leave to appeal against conviction should be refused and I do so for the reasons advanced by Pagone AJA in his judgment.

2 I agree with Pagone AJA, for the reasons that he gives, that the application for leave to appeal against conviction should be refused.

3 The applicant seeks leave to appeal from a conviction on four counts of indecent acts involving a child under the age of 16. Six grounds of appeal are relied upon, of which the most prominent was that the trial judge had erred in his charge and directions to the jury in relation to what were referred to as ‘uncharged acts’. The other grounds of appeal also relied upon this ground either in the alternative or in addition.

4 The applicant’s complaint about the trial judge’s charge to the jury concerning ‘uncharged acts’ had several aspects. In summary, the applicant complained that the trial judge had erred in directing the jury that evidence of ‘uncharged acts’ could be used by them ‘to assess and evaluate the evidence relied on by the Crown in proof of the offences charged in a realistic, contextual setting’; that the trial judge should have told the jury that they had to be satisfied beyond reasonable doubt in finding the facts forming part of the ‘uncharged acts’; that it was inappropriate to call the relevant acts ‘uncharged acts’; and that the trial judge should have directed the jury that their verdict on the charged acts might be affected if they were not satisfied beyond reasonable doubt of the facts constituting the ‘uncharged acts’.

5 The applicant had been charged with a total of 11 counts being four counts of an indecent act with a child under the age of 16 to whom he was not married, six counts of an indecent act with the child, and one count of digital sexual

penetration with her. The jury returned a not guilty verdict on seven counts (including that of digital penetration) but guilty on four counts, namely counts 1, 2, 7 and 9.

6 The applicant was aged between 39 and 42 years at the time of the offences alleged against him and 46 years of age at the time of the sentence. He had no previous convictions. He came into contact with the complainant after he developed a relationship with a woman, (‘R’), now deceased, whose daughters had been friends of the complainant. The applicant moved into R’s home (the first residence) but later moved to another place some distance away (the second residence). The complainant was born in 1989 and lived with her parents near the first residence and had been a frequent visitor to the first residence before the applicant began the relationship with R.

7 Her evidence against the applicant was that he had engaged in sexual behaviour towards her by flashing his genitals and saying inappropriate things. The trial judge identified evidence of seven matters about which he gave specific directions as ‘uncharged acts’ The first matter identified by his Honour was of ‘dirty talking’ to the complainant, which his Honour said was ‘not strictly an uncharged act’ there was no offence of dirty talking that could be laid. The evidence, his Honour held, was ‘admissible as part of the context of what actually occurred as the Crown [alleged] and for [the jury] to properly assess the evidence that [had] been led’. Secondly, numerous acts of the applicant flashing his penis apart from the specific allegations which were the subject of counts on the presentment. Thirdly, an occasion when the applicant walked into the shower, stood in the doorway and looked at the complainant. Fourthly, occasions when the applicant brushed past the complainant with his genitals either against her bottom or her vagina as he was walking through a doorway or walking past a couch in the living room. Fifthly, when the family moved to the second residence when it was alleged that he had rubbed against her. Sixthly, again at the second residence, when it was alleged he touched her on the vagina over her clothes. Seventhly, occasions when it was alleged that he had rubbed her on the breasts.

8 The judge’s charge to the jury preceded the description of the ‘uncharged acts’ and was as follows:

You have heard in this case of what is referred as evidence of uncharged acts. That is evidence alleging other criminal conduct by the accused against the complainant which is not reflected on the presentment as charges or counts that have been laid against him by the Crown. The normal rule in any criminal trial is that evidence of criminal acts not charged on the presentment is inadmissible and may not be led before the jury.

In this case evidence of other alleged criminal offending by the accused had been led before you as an exception to the rule. That law permits evidence by the complainant of other offences not charged in the presentment to be led for a very restricted purpose. That evidence, if you are satisfied beyond reasonable doubt, that in fact it has occurred can be used by you for the limited purpose of determining whether the Crown has established that there was an improper sexual relationship that existed between the accused and the complainant, tending to make it more likely that the offences charged on the presentment were in fact committed by the accused. Such evidence can be used by you to assess and evaluate the evidence relied on by the Crown in proof of the offences charged in a realistic, contextual setting.

The applicant complains that this charge was erroneous in law for, in essence, the reasons set out above.

9 The use of evidence of what has come to be described as ‘uncharged acts’ is potentially problematic and requires special care. Evidence that may be, or is, described as ‘uncharged acts’ may be so prejudicial that its effect in the minds of a reasonable juror may outweigh its probative value. The concern about such evidence is that it may become the reason or basis for a conviction in place of the evidence about the events actually charged. Evidence about what may loosely be described as ‘background’ or ‘context’, where its prejudicial effect outweighs its probative value, must not substitute for evidence of the offences charged in reaching a verdict of guilty. Such evidence may be admissible, as it was here, but will require that the trial judge give a warning to the jury to make clear to them the limited purpose for which it may be used by them in reaching their verdict. What must be clear to the jury is that the evidence concerning the ‘uncharged acts’ is used by the jury not to conclude that the charged acts are proven but, rather, as establishing, in this case, that ‘the accused had a sexual interest in the complainant and had carried that interest into effect’.[1]

10 The High Court in HML v The Queen[2] has recently considered the importance of clarity and precision in jury directions concerning ‘uncharged acts’. It is perhaps desirable for the term ‘uncharged acts’ to be avoided, but it is essential that any specific direction about such evidence be clear, precise and directed. Not all evidence in a criminal trial requires proof beyond reasonable doubt and, more importantly, not all evidence in a criminal trial will be admitted for a limited purpose. Evidence of the kind in question is inherently prejudicial and any direction to a jury needs to make it clear what evidence requires special caution. However desirable it may be to avoid descriptions such as ‘uncharged acts’ to identify that which the jury is being asked to consider cautiously, I do not consider it a legal error to have done so. What is critical is not the description but, rather, what the jury is being asked to do with evidence of that kind.

11 In my view the direction in this case concerning the ‘uncharged acts’ was not erroneous. The trial judge did refer to the evidence as ‘uncharged acts’ although he did so (as is clear from the passage quoted above) as a shorthand means of referring to that which the jury had previously heard described as such. Immediately after that description, however, his Honour identified the evidence described in that shorthand way. He went on to explain its reception as an exception to the normal rule about admissibility and that, for that reason, its reliance was what his Honour described, with emphasis, as being for a ‘very restricted purpose’. His Honour went on, after the passage quoted above, to emphasise the importance for the jury to know how it could use this type of evidence and also how it was ‘not permitted to use such evidence’. In that regard his Honour gave three specific directions making it quite clear that the evidence being referred to as ‘uncharged acts’ was not to be used in substitution for evidence of the events charged. The jury could have been in no doubt that proof of the ‘uncharged acts’ did ‘not prove the offences with which [the applicant was] charged’. The latter offences could ‘only be proved by admissible evidence which [established] each of the elements that [went] to make up the offence or offences’ charged. It may, with the benefit of hindsight, often be possible to review a jury direction and consider how it might have been improved, but I do not regard the one given in this case to be incorrect.

12 One of the complaints made by the applicant about the charge was that his Honour was said to have erred in not emphasising to the jury that the permitted use of the evidence could only be made out if the jury were satisfied beyond reasonable doubt of the conclusions to be drawn from the evidence of the ‘uncharged acts’. In fact the judge did say that they needed to be satisfied beyond reasonable doubt about that evidence. In R v Best[3] Callaway JA said:

A jury does not have to be satisfied beyond reasonable doubt of the truth of a piece of circumstantial evidence, or of a conclusion to be drawn from it, unless the inference of guilty of the offence that they are considering is based wholly on that evidence or conclusion or it constitutes an indispensable link in a chain of reasoning towards the inference of guilt.[4]

The trial judge in this case prudently, and in my view correctly, expressed the view that the jury needed to be satisfied beyond reasonable doubt of the evidence of the ‘uncharged acts’; no doubt because it, as a piece of circumstantial evidence, might form the basis of the inference of guilt of the offence or might constitute an indispensable link in a chain of reasoning towards an inference of guilt. In any event, contrary to the argument, his Honour did say, and in my view made clear, that the jury needed to be satisfied beyond reasonable doubt of the conclusions to be drawn from the evidence of what were described as ‘uncharged acts’.

13 The second ground of appeal was that the trial judge materially misstated the complainant’s evidence in giving his direction to the jury in relation to the first count charged against the applicant. The first count against him was of an indecent act in the presence of the complainant. In directing the jury on this count the trial judge described the complainant’s evidence, adding ‘[n]ow that is what she says is the first specific event that occurred’. Her evidence was not explicitly that it was ‘the first specific event’ to have ‘occurred’ to her, although it might have been. It certainly was the first count charged against the applicant and it was the first specific incident she referred to when asked whether she could recall ‘some specific incidences of him behaving’ in a particular way to her. The description of this event by the trial judge as the complainant’s evidence of ‘the first specific event’ is fairly to be read in the context of the charge as a whole as being to the first specific event referred to by the complainant.

14 The third ground of appeal also relates to the first count against the applicant. He maintained on appeal that the verdict on Count 1 is unsafe and unsatisfactory because, in addition to the first two grounds of appeal discussed above, R was alleged to have been present but could not be called as a witness, and also that the complainant had merely alleged that the applicant had done this a few times.

15 The test for whether a verdict is unsafe and unsatisfactory depends upon whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[5] In considering that question it must be borne in mind that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that it had the benefit of seeing and hearing the witnesses. This trial depended upon the jury accepting or not accepting the complainant as a witness of truth. That point was made to the jury by the trial judge and by both counsel appearing at the trial. The jury were told to consider each count separately and that they could act on some, but not other, parts of her evidence. The jury asked for some of the evidence to be repeated to them and ultimately accepted the complainant as being truthful and reliable.

16 The complainant’s evidence had been that the applicant had flashed his penis at her in the living room whilst R was on the couch. The three (that is, the applicant, the complainant and R) had been on the couch watching television when he went to the kitchen. The complainant was on the edge of the couch and could see directly into the kitchen. She looked up in his direction and saw that he had exposed himself to her. The trial judge gave a specific direction to the jury about R’s unavailability as a witness. Specifically he directed them that the applicant had ‘suffered a disadvantage or prejudice in not being able to elicit evidence from her’. In particular his Honour said that the jury was ‘not permitted to speculate as to what she might have said’. His Honour emphasised that the jury should not speculate as to what she might have said but that their duty was to decide on the evidence before them. The evidence before the jury was, in my view, sufficient for them to conclude as they did. That is, they accepted the evidence of the complainant as being truthful, accurate and reliable.

17 The fourth ground of appeal raised much the same complaint in respect of Count 2. The second count related to an occasion when the complainant was in the study talking to R who was on the computer at the time. That count was that the complainant had been sitting on a bed behind R and that the accused was standing behind R also. The essence of the count was that the applicant had turned to the complainant exposing his penis to her in the presence of R. The evidence given by the accused in respect of these two events was given at about the same time in the proceedings. Her evidence was clear enough for the jury to reach its conclusions against the applicant and, as I have said, the jury asked for and were given access to the complainant’s evidence during their deliberations.

18 The fifth ground of appeal concerned the verdict on Count 7. The applicant maintained that the verdict on Count 7 is unsafe and unsatisfactory as being fundamentally inconsistent with the verdict of not guilty on Count 6. These two counts related to events in the room of one of them applicant’s two sons (‘A’) from a previous relationship who, by this time, was living in the house with the applicant. The complainant had given evidence of an occasion in which she had been asleep in A’s room when he was not there. Her evidence of that occasion was that the applicant walked in, sat down on the bed, grabbed her wrists and started kissing her on the lips. Nothing else was said to have occurred on that occasions. She next recalled another occasion in A’s room when he was asleep as well. Her evidence was that on that occasion the applicant came in and put his hands under the covers and rubbed her vagina on top of her pants. She was then asked whether that was a different occasion from the first occasion (referred to as the ‘kiss occasion’) and she added to her previous answer saying that it occurred on that occasion as well. The prosecutor then returned to the first occasion asking whether there was a touching of her vagina on that occasion. The response was that there was a touching above her clothing. In relation to that occasion she also said that he also touched her breasts above her clothing.

19 A fair reading of her evidence was that two inappropriate contacts were alleged on one occasion but only one contact on the other occasion. Count 6 had been an allegation that the applicant had begun rubbing the complainant’s breasts over the top of her clothes while Count 7 was that he had rubbed the complainant on the top of her vagina over her clothes. There is no relevant inconsistency if there is a proper way by which the appellate court may reconcile the verdicts allowing it to conclude that the jury performed their function as required.[6] The jury’s conviction on Count 7 is explicable as being an acceptance of that inappropriate touching on its own on one occasion or that the rubbing of the complainant’s breasts might have had some other explanation.

20 The sixth ground of appeal concerned Count 9. The complainant’s evidence on this count concerned an occasion after the applicant and his family had moved to the second residence. On that occasion his son A was said to have been on the computer in the main bedroom. The complainant had been looking at something A had been doing when the applicant walked in and brushed past her although there was about a space of some two metres he could use to get past without brushing her. In particular her evidence was that the applicant’s genital area had come into contact with her bottom. The applicant’s contention on appeal was that the conviction was unsafe and unsatisfactory because of the lack of corroborating evidence from A about this incident. He had been called to give evidence by the prosecutor, but neither the prosecutor nor counsel for the defence sought to ask any questions in respect of this incident. Nor is there any reason to assume, on the basis of the evidence given by the complainant, that he would have been able to give any relevant evidence in respect of the incident. I do not consider this ground to have been made out either.

[6] Mackenzie v The Queen (1996) 190 CLR 348, 366-369 (Gaudron, Gummow and Kirby JJ).

Supreme Court of Victoria - Court of Appeal

R v McKenzie-McHarg [2008] VSCA 206 (17 October 2008)