AC v The Queen
[2014] VSCA 71
•11 April 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0184
| AC | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE, WEINBERG and OSBORN JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 31 March 2014 | |
| DATE OF JUDGMENT | 11 April 2014 | |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 71 | First Revision 11 April 2014, [1], [6], [116], [118] |
| JUDGMENT APPEALED FROM | The Queen v [AC] (Unreported, County Court of Victoria, Judge Hampel, 14 May 2013 (Date of Conviction)) | |
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CRIMINAL LAW – Application for leave to appeal against conviction – Rape – Whether substantial miscarriage of justice due to the terms of the charge – Delay in making of complaint by child complainant – Comment in charge about the experience of judges – Whether conviction unsafe and unsatisfactory – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann | Kurnai Legal |
| For the Respondent | Ms S Flynn | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
I have had the advantage of reading the draft reasons of Osborn JA, and I agree with him for the reasons he gives, that leave to appeal should be refused.
WEINBERG JA:
I have had the advantage of reading, in draft, the reasons for judgment prepared by Osborn JA. I agree, for the reasons given by his Honour, that leave to appeal should be refused.
OSBORN JA:
On 15 May 2013, following a trial before her Honour Judge Hampel and a jury, the applicant (now aged 20)[1] was convicted in the County Court at Melbourne of the offence of rape.
[1]It appears the applicant’s date of birth is 8 June 1993.
The alleged victim was a nine year old boy who was penetrated anally with a vibrator in the early hours of Sunday 23 June 2012.
There was no issue on the evidence that the victim was so penetrated. The issue for the jury was whether they were satisfied beyond reasonable doubt that the applicant was responsible.
The applicant now seeks leave to appeal the verdict on two grounds.[2]
·Ground 3 — The learned trial judge’s charge was unbalanced and factually wrong in a number of respects leading to a substantial miscarriage of justice when considered as a whole.
·Ground 4 — The conviction for the charge of rape was against the weight of evidence and therefore unsafe and unsatisfactory.
[2]Grounds 1 and 2 of the notice of appeal were abandoned in argument on appeal.
Background facts
There were some aspects of the sequence of events which were not in issue.
On the evening of Saturday 23 June 2012, the applicant, his mother (AG), his girlfriend TA and some other friends and relatives visited the house of the complainant’s mother, PS. The group partied at the house late into the night, consuming alcohol and in some instances other substances.
The complainant (born 20 May 2003) spent much of the night playing video games in his room. The applicant and his cousin WD spent considerable time in the room with the complainant over the course of the night.
At around 1:00 am on 24 June 2012 an argument occurred. Some guests left the house, and the complainant’s mother went out in the street and fought with one RJ. The police were called, and the complainant’s mother was arrested and taken into custody for public drunkenness. She remained in custody at the Warrnambool cells from about 1:00 am to 5:00 am that morning.
The applicant’s mother AG remained at the house, along with the applicant, TA, WD and a relative of the complainant, AJ, so as not to leave the complainant on his own.
The applicant’s mother dropped AJ home on her way to pick up the complainant’s mother from the cells around 5:00 am.
When the complainant’s mother returned home, she saw the complainant was in her bed.
Shortly afterward, the complainant had a shower, and was seen coming out of the shower wrapped in a towel. The complainant said he had had an accident.
Later blood drops were seen on the floor of the toilet, the bathroom and the hallway.
When she went to bed the complainant’s mother found that her bedroom smelt of lubricant and then found that a vibrator usually kept in a drawer was under her bed. There was what appeared to be, and was later confirmed to be, blood and faeces on it. She also found a tube of lubricant under the bed.
The next day the complainant appeared to be in pain but refused to allow anyone to look at his bottom, and refused to speak about what had happened. He told his mother that he had hurt himself and did not make any allegation of sexual assault.
He also told a health co-op nurse (Annie Bertram) who visited the house on the Sunday that he had done it himself, ie hurt himself. He refused to tell another health co-op nurse, who also visited on that day, what had happened to him.
He appeared to be in increasing pain and discomfort as the day went on and was taken to the emergency ward of the hospital at 9:30 pm on the evening of 25 June 2012.
On 26 June 2012 the complainant spoke with Detective Wright at the hospital. He told the detective that it was the applicant who had hurt him. It was common ground that it was not until during the late morning or early afternoon around about lunchtime that the complainant first said anything about somebody else having hurt him and that that somebody else was the applicant.
The complainant also said that he had been told by the applicant his throat would be slit if he told anybody anything.
Prosecution Case
It was the prosecution case that it was the applicant who caused injury to the complainant. The injuries were lacerations to the complainant’s anus and they were caused by the applicant penetrating the complainant’s anus with a vibrator.
The applicant had taken the complainant from his own bedroom with his mouth covered into the complainant’s mother’s bedroom. The applicant pushed him down or held him down on the bed and sexually penetrated him.
The complainant did not tell anybody what happened at first because he was too frightened, traumatised and embarrassed to reveal what had happened.
A child of the complainant’s age and development would not have known how to put lubricant on a vibrator, nor the purpose of a vibrator, nor would he force it or any object that size into his own anus to cause the injuries to himself or the deposits on the vibrator that were later discovered.
The applicant, rather than WD, sexually penetrated the complainant because the complainant identified the applicant as causing the injuries. The identification was first made to police at the hospital. It was confirmed by the complainant’s evidence on the VARE tape and at the special hearing. It was also confirmed by the evidence of the psychologist who treated him on a weekly basis over an extended period, commencing on 3 July 2012.
The applicant lied in his record of interview when he denied that he had seen or touched the vibrator earlier in the night, and denied going into the bedroom or being in any way related to the viewing and touching of the vibrator.
Although the DNA evidence was consistent with the scenario of the complainant touching the vibrator, this did not mean the only explanation for the DNA evidence was that the complainant penetrated himself. It was not surprising that the complainant’s DNA was on the base of the vibrator, or the lubricant bottle, given that these objects may have touched parts of the complainant’s body during the offending.
Defence Case
The defence case was that however the injuries to the complainant’s anus were sustained, the jury could not be satisfied beyond reasonable doubt that they were caused by the applicant penetrating his anus.
There was no evidence implicating the applicant independent of the complainant’s account and his initial account was that he had hurt himself.
The evidence of all the people present at the house throughout the night was wildly confusing, contradictory and unreliable.
The doctor who examined the complainant was unable to say whether the complainant’s anal injuries were self-inflicted or whether another person caused them.
No DNA belonging to the applicant was found on the vibrator, nor on the tube of lubricant. The complainant’s DNA was found in blood on the vibrator; and in non-blood biological material on the vibrator, indicative of the complainant handling it. The complainant’s DNA was also found on the crimped end of the lubricant bottle, indicative of handling, and excluding the possibility that the applicant handled it. The jury could not exclude as a possibility that the complainant handled the vibrator and penetrated himself.
The accounts given by the complainant to the psychologist Ms Brown and Detective Wright were predicated on an assumption that the complainant was injured by someone else. He was never asked if he injured himself.
The possibility that the complainant penetrated his own anus, having not appreciated how painful or injurious this would be, could not be excluded.
Alternatively, the possibility that WD penetrated the complainant’s anus could not be excluded.
The evidence
The evidence at trial included the following.
Evidence was called from the complainant consisting of a VARE recording and evidence given as part of a special hearing before Judge Chettle on 25 March 2013. His evidence was that it was the applicant who had hurt his bottom and that he could not see what the applicant had done to him from behind. After injuring him, the applicant told the complainant that if the complainant told anybody what had happened he would slit the complainant’s throat.
The applicant had woken the complainant up and taken him from the complainant’s room to his mother’s room prior to the assault. He assaulted the complainant on the bed. No-one else was present. He was hurt after his mother left the house. After his mother came back he had a shower.
Evidence was also called from Julie Brown, the psychologist who treated the complainant from 3 July 2012 onwards. Her evidence (to which I shall return in more detail) was in part that the complainant was initially unable to talk about what had happened because he was traumatised by the assault but progressed to identifying the applicant as the assailant.
PS, the complainant’s mother, gave evidence that she was the first person to return to the house after coming back from police custody. She said that after entering the house she saw the applicant walk out of her bedroom but there were differences between a police statement she had made and her oral evidence as to precisely when this occurred. She also gave evidence that she initially saw the complainant lying on her bed but subsequently spoke with him after he had had a shower. He said he had had an accident. She described seeing blood spots on various floor surfaces. She described smelling lubricant when she went to her bedroom and finding the vibrator and a tube of lubricant under her bed. She described observing that the complainant was in pain the following day and talking with him. She called two successive health co-op nurses to the home and ultimately took the complainant to hospital on the Sunday night. In discussion with her, the complainant had said that he had hurt himself.
RJ confirmed that she had had an altercation with the complainant’s mother outside the house before police attended and arrested the mother. She said that the complainant had been playing games earlier in the evening and then had been put to bed.
TA, the applicant’s girlfriend, gave evidence consisting of two VARE recordings and evidence given in camera before Judge Hampel on 8 May 2013. There were material inconsistencies between the two VAREs. On both VAREs however TA said she had heard the complainant scream as she got out of her car after collecting the complainant’s mother.
WD, second cousin of the complainant’s mother, gave evidence that he had not seen the vibrator and was unaware of its existence or of it being found, touched or played with on the night in question. He and the applicant were both in the lounge when the others walked in after collecting the complainant’s mother from jail. He also denied going into the complainant’s mother’s bedroom and denied assaulting the complainant.
AM, the second cousin of the complainant’s mother, gave evidence that he had not seen the vibrator and was unaware of its existence or it being found, touched or played with that night.
AJ, brother of AM and second cousin of the complainant’s mother, said that the applicant had called him into the bedroom and had found the vibrator in a drawer. The applicant showed it to him and threw it at him. It touched his arm and fell on the bed. He denied going through the complainant’s mother’s drawers or finding the vibrator and said he would not have done such a thing.
AG, paternal aunt of the complainant’s mother and mother of the applicant, said she was the first person in the house after returning from collecting the complainant’s mother from jail. When she came back she saw the applicant and WD both sitting at the table.
The health co-op nurses Annie Bertram and Gaye Morrissey gave evidence of the complainant’s response when they visited him on Sunday, including a statement that ‘I did it’ and repeated refusals to talk about what had occurred.
Dr Kim Olinsky gave evidence that she examined the complainant’s anal region under anaesthetic on 25 June 2012. She found three laceration injuries to the complainant’s anus. The lacerations were at the 12 o’clock, 6 o’clock and 3 or 4 o’clock positions. Two larger lacerations were about one centimetre in length. The two larger lacerations had gone through the skin and the mucosa and the muscles of the anus were visible. They were estimated to have been caused recently within the preceding two or three days. They had been caused by a hard object pushed against the anus with ’quite significant’ force. Dr Olinsky could not determine whether the injuries were self-inflicted or not. Evidence was also called from Dr William Ryan, who examined the complainant when he first presented in the Emergency Department at Warrnambool Hospital and referred the complainant to Dr Olinsky.
Detectives Wright and Beale gave evidence that they spoke with the complainant in the playroom in the paediatric unit at the hospital after the procedure under anaesthetic. After some time, the complaint said that the applicant had hurt him, indicated by pointing that he had hurt his bottom and said that the applicant had threatened to slit his throat if he told anyone.
Miss Bianca Laan, a DNA scientist, found DNA matching the complainant in a patch of apparent blood near the tip of the vibrator. The complainant’s DNA was also found in non-blood biological material taken from a base section of the vibrator. These two samples excluded the applicant, the complainant’s mother, AJ and WD as sources of the DNA. Ms Lyon also examined an apparent bloodstain near the crimped end of the lubricant tube and examined the top of that tube. The complainant’s mother was the main contributor to DNA taken from the ‘squeezing’ end of the lubricant tube. The applicant, complainant and WD were all excluded as contributors to the DNA found in that sample. A DNA profile was extracted from a lubricant stain on the bed sheets in the complainant’s mother’s bedroom. The applicant was excluded as a contributor to that stain. It was inconclusive whether the complainant, his mother, AJ or WD were contributors to the stain.
Ms Laan also gave evidence that the fact a person’s DNA profile is not detected on a particular item does not indicate that that person has not touched the item. Touching may not transfer enough DNA to be detected by current testing techniques. Smooth surfaces may result in less transfer than would rough surfaces. The vibrator had a smooth but rippled surface. It was very difficult to draw specific conclusions as to how much DNA would transfer to it in a particular instance.
The vibrator was examined on 11 July 2012. When received in the laboratory it was wrapped in two pieces of material. Other evidence described the vibrator as being wrapped in towel when given by the complainant’s mother to police. The fact that the vibrator was wrapped in cloth and the fact that it was then placed in a paper bag by investigating police could affect the survival of DNA material.
The informant, Detective Senior Constable Wright, produced a record of interview with the applicant, made at Warrnambool on 26 June 2012.
Ground 3 — a balanced charge?
As it was argued, the applicant’s case in respect of ground 3 was put primarily by reference to statements the trial judge made in her charge with respect to the issue of delay in complaint. Insofar as the applicant’s written outline case referred to other matters these were relied on as contextual matters bearing on the question of whether the charge overall was properly balanced. Before turning to the relevant part of her Honour’s charge there are three preliminary matters to be noted:
(a) the delay in complaint was only two days;
(b) in putting the case at trial the defence coupled the fact of delay with the initial statements by the complainant to his mother and to a nurse that he hurt himself as giving rise to a doubt that his subsequent statements were true. The defence did not rely upon delay simpliciter;
(c) specific evidence was given by the complainant’s treating psychologist explaining why in her view the complainant delayed in identifying the applicant as responsible for his injuries. The Crown put its case in final address with respect to delay on the basis of this evidence.
It is necessary to elaborate the last matter.
Ms Brown gave evidence that she held the degree of Bachelor of Arts from the University of Tasmania majoring in Psychology and Bachelor of Science with Honours from Monash University with First Class Honours in Psychology. She had been a registered psychologist in Victoria since 1987 and had extensive clinical experience working with children.
She first saw the complainant on 3 July 2012 and he had subsequently attended approximately 29 counselling sessions with her. On average she saw him once a week.
Ms Brown described the complainant’s behaviour when she first saw him about a week after his admission to hospital. In particular she described him putting his hands over his face when the subject matter of his injuries was broached and the fact that the complainant initially said nothing when asked if he could tell her a bit about what happened.
She further described the strategies she adopted to establish rapport with him and his progress thereafter.
She expressed the opinion that initially the complainant was unable or unwilling to speak about the incident because he was traumatised and said further:
He was experiencing frequent nightmares, flashbacks several times a day, avoiding doing - avoiding anything to do with the assault, a fear of dying and heightened levels of anxiety, anger outbursts and some self blame. In my experience, child victims, who have been traumatised are unwilling to talk or explain the incidents - explain the incidents, often blame themselves. If the child has no guilt about their experience, it is often easier for them to discuss it.
…
[The complainant] blamed himself because his mother had said to him that you did this to yourself.
In your sessions with [the complainant] over that period of time, had he ever indicated to you that he'd done it to himself? --- No.
As I understand it, Ms Brown, you've treated a number of children over the years who've alleged sexual abuse or sexual assault? --- Yes.
Do you express an opinion as to your view of [the complainant], as opposed to the other people that you've treated? --- Certainly [the complainant’s] one of the more traumatised children that I've seen. It's - there's - oh, look, I won't go into all the specifics of it, but there's - there's two groups of children who have been sexually assaulted. This one is a - what I would call a single incident trauma. Obviously, you know, very terrifying and frightening. Other children are sexually assaulted many, many times, usually in a family situation.
Ms Brown also described a process of progressive description of the applicant by the complainant. Initially the psychologist asked the complainant to draw pictures of his assailant and the complainant did so indicating and describing a person with blond bits in his hair (a characteristic of the applicant at the time). It was only after a substantial period of counselling that the complainant identified the applicant by name as his assailant.
The trial judge initially directed the jury on the question of delay in complaint as follows:
The next aspect dealing with [the complainant’s] disclosures is the significance you place on the fact that he did not initially say what he then said to the police on the 26th in his VARE in late July and in his special hearing in March, and in his counselling with Ms Brown from October/November when he started to talk about it, that for the first day and a half or so, he either said or adopted the suggestion he did it himself, or said nothing had happened, or said he did not want to talk about it.
In considering therefore will you accept [the complainant] as truthful and reliable, you should consider what weight you give to the fact that he did not make the disclosure that [the applicant] had done something to him, until he spoke to Detective Wright on the 26th, although he had opportunities with his mother, with Annie Bertram, with Gaye Morrissey, both people it seemed with whom he was familiar, particularly Gaye Morrissey; or to the doctors or the police at the hospital when he was first taken there.
You can take the delay in disclosure of what he now says – or what he then from the 26th of June said happened, and his refusal to say anything about it when asked by people who you would expect he could trust and would be able to confide in, his mother and the two nurses, or to the doctors at the hospital or the police when they first came, into account, in assessing his credibility, if you find that that delay in saying it was [the applicant] who hurt him, and that he was hurt by somebody else, is inconsistent with his account of events, and inconsistent with the other evidence of the surrounding circumstances.
It is for you to determine whether the delay in complaint is inconsistent with the way you would expect a child in [the complainant’s] circumstances to act. You must consider what weight, if any, you give to the evidence of the description of [the complainant’s] manner by the various people you have heard of who tried to discuss it with him. The significance you put to their descriptions of his putting his hands up in front of his face and his saying he did not want to talk about it; and of his account of the threat to slit his throat to which I have already referred.
You can also take into account his demeanour, as you saw it, in the VARE, when considering the weight to be given to the evidence of those who asked him about it in those early – in that early day or day and a half before he spoke to Detective Wright. So look at whether you consider there is a consistency in their description and in Ms Brown's description of him in those early days and what you saw of him in the VARE, and then the difference that you saw of him in the special hearing and consider the significance, if any, you place on the weight – place on the evidence of Ms Brown as to what had happened through counselling in those intervening months.
If you would have expected [the complainant] to tell his mother as soon as she got home from the cells, or to tell Annie Bertram or Gaye Morrissey, or to tell Dr Ryan or Dr Olinsky, or the police who first came to the hospital, then you may find his delay in saying ‘[the applicant] did it’, as inconsistent with the truth of the account that he has given on the 26th, in his VARE, and in the special hearing.
In considering this, you must take into account [the complainant’s] circumstances at the time as you find them to be.
With respect this was a full and careful direction with respect to the evidence relating to delay in complaint and the context within which it might be assessed.
Her Honour went on to add:
In determining whether the evidence shows inconsistency, it is important that you understand there may be good reasons why a victim, particularly a child victim, of a sexual assault, may delay in complaining. Here, we have heard the evidence of the threat, the evidence from [PS], from Annie Bertram and Gaye Morrissey, and the doctors and the police about [PS]'s belief, it would appear from an early stage, that [the complainant] had done this to himself, and Ms Brown's evidence of [the complainant’s] description of feeling guilty because his mother had suggested or asked him if he had done it himself. That is when [the complainant] was recounting back to Ms Brown about his feelings of guilt. So all those are matters to take into account in looking at consistency.
Let me say this, and this is a comment of mine which you can accept or reject. It is the experience of judges over the years that people who have been sexually abused often feel embarrassed, ashamed and powerless. That they fear they will not be believed, or that they will be blamed. There may be afraid of the consequences for themselves or for others, particularly if they have been threatened with harm. That can be compounded if the victim is young and if the perpetrator is a family member or a member of the close and family trusted circle.
Experience also shows that children will often make staged or partial disclosures, waiting to see what the response is to what they say before they reveal any more, but, as I said, that is a comment of mine. You can accept or reject that.[3]
[3]Emphasis added.
Her Honour then went on to give detailed directions about the inconsistency between the complainant’s initial statements about having harmed himself and his subsequent evidence. These directions were again careful and comprehensive.
The applicant takes issue with the trial judge’s comments concerning ‘the experience of judges’ in respect of delay in complaint as unfairly endorsing and reinforcing the Crown case.
There was no significant discussion with counsel about the issue of delay in complaint prior to the charge. Nevertheless it is not disputed that the defence had put the credibility of the complainant in issue partly by reference to the delay which occurred in making complaint which identified the applicant.
Section 61 of the Crimes Act 1958 relevantly provides:
(1)On the trial of a person for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) or under any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence—
(a)the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and
(b)if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge—
(i)must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it; and
(ii)must not warn, or suggest in any way to, the jury that the credibility of the complainant is affected by the delay unless, on the application of the accused, the judge is satisfied that there is sufficient evidence tending to suggest that the credibility of the complainant is so affected to justify the giving of such a warning; and
(iii)must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay.
…
(2)Nothing in subsection (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice.
(3) Despite subsection (2), a judge must not make any comment on the reliability of evidence given by the complainant in a proceeding to which subsection (1) applies if there is no reason to do so in the particular proceeding in order to ensure a fair trial.[4]
[4]Crimes Act 1958 s 61.
Plainly enough a judge is entitled to further exemplify the possible good reasons for delay contemplated by s 61(1)(b).
In R v ERJ,[5] Redlich JA said of the assessment by an appellate court of the significance of delay:
A delay in the making of a complaint may adversely affect the credit of a complainant, where that delay is inconsistent with the complainant’s account. But the mere fact of delay between the alleged offence and the complaint will not necessarily be such as to permit reasoning that the complainant’s credit is affected. It is the nature of the delay in the overall circumstances of the case, which is critical. In cases involving sexual offences, where the issue of delay is raised before the jury, s 61(1)(b)(i) of the Crimes Act 1958 (Vic) requires the trial judge to inform the jury ‘that there might be good reasons’ why a complainant may delay in the making [of] a complaint. These reasons will be relevant to the jury’s assessment of the significance of the delay. The reasons to which the trial judge should refer are not to be confined to any explanation that the complainant may advance for any delay.
…
In cases involving sexual offences, victims may delay in making a complaint about the abuse. The offender will often be a trusted family figure or one upon whom the victim is emotionally dependent. Even where the victim has had some other sexual experience, they may view their relationship with the offender as special. Commonly the victim will have no reference standards with which to judge their experiences apart from those supplied by the offender. Hence the complaint may be delayed for reasons which may include a conviction that there is nothing wrong with or abnormal about the acts. There may be other reasons for delay. The victim may be sworn to secrecy. There may be compulsion to secrecy by threats. There may be imposed or misplaced feelings of responsibility for the acts. The victim may fear family dissolution or punishment of the wrongdoer. There may be misplaced guilt or self blame. And the victim may employ various strategies to cope with the abuse such as repression of the acts so that conscious knowledge of them is concealed, suppression of the acts to avoid conscious recall of the events or even psychological disassociation from the acts.[6] Any of these factors may contribute to delay in making complaint or a delayed conscious recognition that the conduct was wrongful. These are not necessarily explanations that the complainant will articulate in evidence. But the trial judge, in conformity with the statutory obligation should at least draw attention to some of those explanations which in the circumstances of the particular case may be relevant. We must take such possibilities into account in assessing the submission that the verdict is unreasonable or unsafe.[7]
[5](2010) 200 A Crim R 270.
[6]Ibid 280, [51] citing Dr Ben Mathews, ‘Limitation Periods and Child Sexual Abuse Cases: Law, Psychology, Time and Justice’ (2003) 11 Torts Law Journal 218, 1.1; Leanne Bunney, ‘Limitations of Actions: Effects on Child Sexual Abuse Survivors in Queensland’ (1998), 18 The Queensland Lawyer 128, 131; Julia Werren, ‘Civil Litigation and Repressed Memory Syndrome: How does forgetting impact on child sexual abuse cases?’ (2007) 15 Tort Law Review 43, 44.
[7]R v ERJ (2010) 200 A Crim R 270, 279–280, [49], [51] (emphasis in original).
The direction here in issue did not simply elaborate upon possibilities contemplated by s 61(1)(b) but commented upon behavioural facts.
The comment in effect provided a context in which to assess the evidence of Ms Brown that the complainant had felt shamed, powerless and traumatised and her further evidence that he made progressive disclosure of the identity of his assailant. It also provided a context in which to assess the evidence as to the complainant’s demeanour and behaviour during the period of delay in issue.
In so doing her Honour prefaced and concluded her remarks by making clear that they comprised ‘a comment of mine which you can accept or reject’.
In turn the central thrust of the submissions for the applicant is that the direction, although expressed as a comment, was unbalanced because it was expressed so as to be likely to lead the jury to defer to the judge’s experience. In B v The Queen,[8] Brennan J said:[9]
A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury. It must exhibit a judicial balance so that the jury is not deprived ‘of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence’. I agree with the observations of the Full Court of the Supreme Court of South Australia in Reg v Hulse:
[T]o use the words of the Privy Council in Broadhurst's Case, there is a danger of the jury being overawed by the judge's views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views.
[8](1992) 175 CLR 599.
[9]Ibid 605 (citations omitted).
The danger of the jury being overawed by the judge’s views may be heightened by the indication by the judge of a basis for those views which is not within the knowledge of the jury.[10]
[10]Cf R v Lau & Nguyen (2002) 5 VR 129, 138 [30] (Buchanan JA with whom Vincent and Eames JJA relevantly agreed).
In my view the reference to the experience of judges was inappropriate. This was not a comment directed to the experience of the courts with respect to the reliability of a particular category of evidence but a comment directed to patterns of human behaviour.
The proper course is to express such a comment in terms which make clear that the comment is directed to identifying reasonable possibilities as a matter of general human experience rather than judicial experience which in turn gives rise to issues for the jury to consider. Thus in the case of MM,[11] the Court of Appeal (England and Wales) held that it was not beyond the bounds of permissible comment for the judge to tell the jury that:
You are entitled to consider why these matters did not come to light sooner. The defence say it is because they are not true. The allegations are fabricated. Had they been true, they say, you would have expected a complaint to be made earlier and certainly when the defendant was out of the way. The prosecution say it that it is not as simple as that. When children are abused … they are often confused about what is happening to them and why it is happening. They are children. That is something which you should have in the forefront of your minds when considering this. They might have some inkling that what is going on is wrong. Sometimes children even blame themselves when there is obviously no need for them to do so. A child can be inhibited for a variety of reasons from speaking out. They might be fearful that they may not be believed, a child’s word against a mature adult, or they might be scared of the consequences, or fearful of the effect upon relationships which they have come to know. The difficulties, you may think, are compounded in the family situation where they involve a family member for whom the feelings of the child may be ambivalent. The child may not like the abuse but there may be aspects of the abuser that causes the child to view them with some degree of affection. The fallout from disclosures can be unpredictable and sometimes calamitous. So, if a child or children are abused, they are often subject to very mixed emotions, and that can be the case particularly where there is an imposing adult in the household of whom they are perhaps afraid and who has overborne them and has power over them and warned them if they tell.
Whether any of that applies here is a matter for you. Equally, there are sometimes in lives, sometimes earlier, sometimes later, when there is a trigger, or the need arises, to disclose, speak out. No easy thing to do, you may think, and it takes some courage to do so.
Ladies and gentlemen, I make clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether you find that there is a reason for the delay here, and of course it also affects the honesty and the truthfulness of the two girls.[12]
[11][2007] EWCA Crim 1558.
[12]Ibid, as cited in the Crown Court Bench Book, 354. Emphasis added.
By contrast with this approach the reference to experience of judges carried with it some obvious risk that the jury would be overawed.
Ultimately however I am not persuaded that her Honour’s direction resulted in a miscarriage of justice.
First, the direction as a whole including in particular the paragraphs preceding the judge’s comments made clear how the question of delay arose on the facts of the case.
Secondly, it is not suggested that the behavioural patterns identified by her Honour do not in fact occur amongst victims of sexual abuse.
Thirdly, her Honour did in plain terms state that the jury could accept or reject her comments.
Fourthly, not only had the treating psychologist explained why delay and staged disclosure might have occurred in the present case, she had expressed an opinion as to the probabilities which was not the subject of direct challenge in cross-examination. In particular the reasonableness of that explanation by reference to what might be expected as a matter of common human behavioural response was not challenged in cross-examination.
Fifthly, no exception was taken to the charge on the basis now argued when opportunity to take such exception was given a relatively short time later. To the contrary, exception was taken to this aspect of the charge but only on the basis that her Honour had failed to make clear that the psychologist had accepted in cross-examination that she had previously stated that she believed the complainant did not name the offender because ‘in the beginning stages he was either too traumatised or did not know the name of the assailant.’ In turn, her Honour gave a further direction reminding the jury of this evidence.
When the above matters are considered together it cannot sensibly be concluded that the reference to the experience of judges had the capacity to materially affect consideration of the evidentiary issues which the jury were required to resolve.
The other matters raised in applicant’s written submissions in support of ground 3 do not change the above conclusion. First, it is submitted that her Honour erred in the course of her charge when she said that the complainant’s mother found the lubricant container in the rubbish, and a tube of ‘wet stuff’ and the vibrator under the bed at a time before the applicant, TA and WD left the house. The Crown concedes that the evidence of the complainant’s mother was that other people had left the house when she found these items. The error was not the subject of exception by defence counsel at trial and in my view did not bear in any material way on the critical facts in issue.
Next, her Honour is said to have erred when summarising the defence case as being that the jury could not exclude WD as a possible offender during the time when the majority of other persons were out of the house. It is submitted this narrowed the defence case as to the window of time in which WD may have offended. Again, no exception was taken to this direction. It was directly responsive to the Crown case as to when the injury was inflicted (which accorded with the probabilities) and it did not purport to exclude other bases for a reasonable doubt. Whilst it did not fully restate the defence case concerning WD, it is difficult to conclude that the statement had the potential to materially mislead the jury as to the issues in the case. There is nothing in this point.
Next, it is submitted her Honour erred in her summary of the DNA evidence. One aspect of her Honour’s initial summary was the subject of an exception and was further clarified. I am not persuaded there was error in her Honour’s charge as amplified. It was plain to the jury that no DNA belonging to the applicant was found on the vibrator, nor on the tube of lubricant. Conversely, the complainant’s DNA was found in both blood and non-blood biological material on the vibrator. The complainant’s DNA was also found on the lubricant bottle. Further, the jury had the benefit of the transcript of the relevant evidence and as her Honour directed them this evidence was detailed and clear.
It is last submitted that her Honour failed to explain that the jury had to be satisfied beyond reasonable doubt that a person other than the applicant (including the complainant) did not cause the injuries to the complainant. When the charge is read as a whole, her Honour made clear that the jury must exclude the reasonable possibility that the injuries to the complainant were either self-inflicted or caused by someone other than the accused. These possibilities were identified at the outset of the charge as being in issue. The evidence relating to these issues was explained in the course of the charge and the defence arguments relating to the possible identity of the assailant were also repeated to the jury. I do not accept that when the charge is considered as a whole there is any possibility the jury did not understand the defence case, including the need to consider the possibility that the complainant injured himself.
None of the matters other than her Honour’s comment concerning possible reasons for delay in complaint were pursued in oral argument on appeal as justifying ground 3 in themselves. Insofar as they are made out they do not give rise to an issue of cumulative effect or alter the conclusions I have expressed with respect to the applicant’s primary complaint.
Ground 4 – unsafe and unsatisfactory
The question in issue is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of rape. In order to answer this question it is necessary to examine all of the admissible evidence and to consider whether it was reasonably open to the jury to be satisfied of the guilt of the applicant.[13] The applicant must show that the jury must have entertained a reasonable doubt about the applicant’s guilt, not that they might have.[14]
[13]M v The Queen (1994) 181 CLR 487.
[14]Libke v The Queen (2007) 230 CLR 559, 596 [113] (Hayne J).
In my view it was open to the jury to be satisfied of the applicant’s guilt. First, bearing in mind his young age, it was open to the jury to accept the complainant’s evidence on the VARE recording and at the special hearing as compellingly coherent and fundamentally consistent despite some hesitations and difficulties in expressing himself.
Secondly, there were aspects of the complainant’s evidence which were compelling in their incidental circumstantial detail, including the description of the manner of the threat made by the applicant to him.
Thirdly, from the time the complainant spoke to police at the hospital he consistently identified the applicant as the assailant. In particular, he did so in the VARE recording, in the course of counselling sessions with Ms Brown and in his evidence upon the special hearing.
Fourthly, there was a window of opportunity of 20 to 30 minutes during which, in the absence of effective adult supervision, the applicant could assault the complainant on the night in question.
Fifthly, it was open to the jury to reject the hypothesis that the complainant inflicted anal injuries upon himself as improbable having regard to the complainant’s age, the apparent use of lubricant on the vibrator, the size of the vibrator and the use of force necessary to cause the injuries suffered by the complainant.
Sixthly, it was open to the jury to exclude the possibility that WD was the assailant on the basis of his own evidence and the evidence of the complainant.
Seventhly, it was open to the jury to accept the evidence of AJ that the applicant played with the vibrator in the complainant’s mother’s bedroom during the course of the evening.
Eighthly, it was open to the jury to conclude that the applicant lied in his record of interview when he denied first that he had been in the complainant’s mother’s bedroom on the night in question and secondly, when he said he did not see a vibrator. Such lies were capable of being treated as evidence of consciousness of guilt. Ground 2 of appeal, which challenged the trial judge’s ruling that the alleged lies were capable of being used as implied admissions of guilt, was abandoned in this Court.
There were in addition a number of other surrounding circumstances which might have been regarded by the jury as tending to confirm the complainant’s
evidence but the above matters are sufficient to demonstrate that it was open to the jury to convict.
In the course of submissions, counsel for the applicant put that the identification by the complainant of the applicant as his assailant was unsafe because he was asked both at the hospital and in his VARE evidence ‘who hurt you’. The evidence of what was said at the hospital was as follows:
Danny Wright then said, 'Who hurt you [the complainant]?' [The complainant] then said, '[the applicant]'. I then said, 'How did he hurt you?' And [the complainant] said, 'I couldn't see it was behind me'. I said, 'Where did you get hurt?' He said, as in [the complainant], sorry, 'I don't want to say', and [the complainant] then used his hand and pointed to his buttocks area. I then said, 'Did anyone else hurt you?' And [the complainant] then said, 'No'. I then said, 'Who else was in the room?' [The complainant] then said, 'Just [the applicant]. Mum was in the other room with other people'. Danny Wright then said, 'Did [the applicant] say anything to you?' [The complainant] then used his hand and made a slitting motion across his throat. [The complainant] then said, 'He told me he would slit my throat if I told anyone'.
At the special hearing the complainant was asked questions about when he got hurt the previous year and in particular ‘how did you get hurt?’ and ‘who hurt your bottom?’.
The thrust of the defence argument was capable of ready appreciation by the jury. It was put in final address and again emphasised in the trial judge’s charge.
I do not accept that the nature of the questions necessarily rendered the complainant’s answers unsafe. The identification of the applicant as the assailant was ultimately a matter which the complainant affirmed strongly and consistently.
It is next submitted that the complainant’s statements to police and in the course of the VARE betray uncertainty. In particular, in the course of the special hearing the complainant was asked about the evidence he had given in the VARE:
Was everything that you said in that recording true? ---Maybe.
What do you mean by maybe? --- I think, well, yes.
Was everything that you said in that recording true? --- I think not everything, yes, I think, yes.
Are you sure about that? --- I think - I don't know.
You don’t know.
And:
And you were asked before by the prosecutor whether it was all true and correct, and I think you said something like, "Oh, most of it," or "Some of it's not right", remember you gave that answer before? --- Yes. (Indistinct.)
Are there any bits in there that you can say - sorry, please answer the question? --- Ah - yeah, there are some bits that I can add to it.
Are there any bits that are wrong? --- Yes, I think.
Yes? --- Yes.
Do you know which bits they were that are wrong? --- No.
When the complainant’s prior statements are considered as a whole however they are remarkably consistent and in my view it was open to the jury to accept him as relevantly truthful and reliable. More particularly, despite expressing uncertainty about what he had said previously in the course of the VARE recording, he remained certain that it was the applicant who hurt him.
It is next submitted that the fact that the complainant could not articulate what the applicant did to him renders the complainant’s evidence suspect. The simple answer to this is that from his first description of the assault at the hospital the complainant maintained that the applicant was behind him as the complainant was face down on the bed. It is hardly surprising that he cannot describe exactly what the applicant did.
It is next submitted that there is confusion in the complainant’s evidence concerning the room in which he was assaulted. When his evidence as a whole is considered it is however plain that he says he was taken from his own room to his mother’s room where the applicant hurt him.
It is next submitted that the complainant had difficulty in articulating what the applicant said to him, what gesture the applicant made, what happened to the complainant’s pyjamas and the act of penetration. This is hardly surprising given the traumatic nature of the assault and the complainant had no difficulty in describing the nature of the ultimate threat made by the applicant.
It is further submitted that the complainant’s evidence demonstrates confusion as to when his mother was present in the house. Ultimately however the evidence as a whole demonstrates a clear window of opportunity of 20 to 30 minutes, prior to the return of the mother.
It is next submitted that at the special hearing the complainant pauses for a long time before responding to the question, ‘Are you sure it was [the applicant]?’. This was a matter for the jury to evaluate but the simple fact remains that the complainant consistently identified the applicant as the assailant over a whole series of questions.
It is then submitted that the evidence of WD supports the view that there was only a period of about three minutes during the half hour window of opportunity during which the applicant could have assaulted the complainant. It is difficult to accept that the jury were bound by WD’s estimates of time. He suffered from mild intellectual disability and had consumed cannabis and alcohol on the night in question. There is nothing in this point.
Next it is submitted that the DNA evidence raises doubts as to the Crown case and in particular the fact that the applicant’s DNA was not found on either the tube of lubricant, the base of the vibrator or the complainant’s underwear. I accept that these circumstances favoured the defence case but they could not be regarded as conclusive.
It is next submitted that there was some confusion in the evidence as to where the applicant was when the complainant’s mother and her companions returned to the house. I accept that this is so but this confusion is not sufficient to displace the Crown case and in particular the matters supporting it to which I have referred.
Lastly, it is submitted that WD, who had played video games with the complainant earlier in the evening, also had the opportunity to assault the complainant during the same window of opportunity as was open to the applicant. This may be accepted but the opportunity does not compel a doubt as to the applicant’s guilt.
The trial judge reminded the jury of all the relevant evidence in substantial detail. She also provided the jury both with a transcript and with a video recording of the evidence. Each of the aspects of the evidence upon which the applicant relied at trial and which has been stressed upon this appeal was well capable of evaluation by the jury. Taken individually or together, they did not require the jury to reject the Crown case.
In my opinion ground 4 must fail.
Conclusion
For the above reasons, I would refuse the application for leave to appeal.
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