AJP (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0185

AJP (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, McLEISH and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2022
DATE OF JUDGMENT:	2 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 187
JUDGMENT APPEALED FROM:	[2012] VCC 1830 (Judge Campton)

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CRIMINAL LAW – Appeal – Conviction – Fresh evidence – Applicant convicted in 2012 of common assault, incest and making threat to kill – Incest charge based on allegation that applicant inserted blunt object into complainant’s anus – Expert evidence adduced at trial that complainant had anal fissure which could be caused by insertion of blunt object, as well as by other things – Complainant told police he had never done anything that could have caused any injury to his anus – Complainant gave evidence that he told no one about abuse until 2008 – Complainant gave evidence at later, unconnected committal that he had inserted object into own anus on different occasion – Complainant also gave evidence at later committal that he told another person about abuse before 2008 – Fresh evidence could have affected jury’s assessment of complainant’s credibility – Evidence could have provided alternative explanation for complainant’s injury – Substantial miscarriage of justice because fresh evidence gave rise to significant possibility jury would have acquitted if evidence available at trial – Sentence already served in full – Appeal allowed – Orders for acquittal.

Criminal Procedure Act 2009, ss 276, 277.

R v Nguyen & Tran [1998] 4 VR 394; R v A2 (2019) 269 CLR 507, applied.

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Counsel
Applicant:		Ms CA Boston and Ms H Canham
Respondent:		Mr CB Boyce QC
Solicitors
Applicant:	Leanne Warren & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

PRIEST JA
MCLEISH JA
WALKER JA:
(1).... Introduction
(2).... Relevant principles
(3).... The parties’ submissions
(4).... Relevance and admissibility
(5).... Significant possibility of acquittal?
(a)          The evidence concerning the anal fissure
(i)     The first complaint to police
(ii)    Dr Stillger’s examination
(iii)   The complainant’s 2010 statement to police
(iv)   The complainant’s evidence at the applicant’s committal
(v)     Dr Parkin’s examination of the complainant
(vi)   The complainant’s evidence at the applicant’s trial
(vii) The complainant’s mother’s evidence at the applicant’s trial
(viii) Dr Parkin’s evidence at the applicant’s trial
(ix)   The prosecution’s closing address
(x)     Defence counsel’s closing address
(xi)   The judge’s charge
(b)          The bike pump evidence
(c)          Did the bike pump evidence raise a significant possibility of acquittal?
(i)     The complainant’s credibility
(ii)    The causation issue
(d)          The evidence about first complaint

(6).... Conclusion

PRIEST JA

I agree with Walker JA.

MCLEISH JA

I agree with Walker JA.

WALKER JA:

(1)Introduction

In 2012 the applicant was convicted of one charge of common assault (charge 1), one charge of incest (charge 6) and one charge of making a threat to kill (charge 7). The jury acquitted him of two other counts of incest (charges 2 and 4), and the trial judge had entered verdicts of acquittal in relation to two other charges of incest (charges 3 and 5). The events in question occurred in 1997 or 1998. The complainant was the son of the applicant’s then partner and was 6 or 7 years old at the time. The charge of incest of which the applicant was convicted involved the insertion of an object — a security baton — into the complainant’s anus. The applicant was sentenced to a total effective sentence of 4 years and 3 months’ imprisonment. He has completed his sentence. The applicant did not initially appeal his conviction.
In a statutory declaration to police given in 2010 (‘2010 statutory declaration’), the complainant had said this:
I have been told by a doctor that I have an ‘Anal Fissure’. There is nothing I have done in my life that would cause any injury to my anus. I am not aware of any medical conditions as a child or teenager that would explain the condition. I believe it may be a result of [the applicant] raping me all those times with his penis and his baton.
The complainant’s 2010 statutory declaration was not tendered at trial, and he did not give evidence to the effect that he had not done anything that would cause injury to his anus.
Part of the evidence led at trial was that of a forensic medical officer, Dr Parkin. Dr Parkin had examined the complainant in 2011 and found that he had scarring consistent with a healed anal fissure. Dr Parkin also gave evidence that in 2009 the complainant had been examined by Dr Stillger (also a forensic medical officer), who found that at that time the complainant had an anal fissure. The scarring that Dr Parkin observed was consistent with the fissure that had been identified by Dr Stillger. There was no real dispute at trial that in 2009 the complainant had had an anal fissure.

Dr Parkin gave evidence that an anal fissure could be caused by insertion of a blunt object into the anus. She also gave evidence that there were various other possible causes of anal fissures, including chronic constipation. The complainant’s medical history included chronic constipation at the age of 3½, which had been resolved by ‘manual disimpactation’, which involves anal penetration. The complainant’s mother had also administered enemas to him when he was around 4 or 5 years of age. Ultimately, after fairly extensive cross-examination, Dr Parkin said that an anal fissure is not diagnostic of either anal penetration or sexual abuse.
The prosecution did not rely on the anal fissure as corroborative of the complainant’s evidence at the applicant’s trial. In closing the prosecutor said to the jury that Dr Parkin’s opinion concerning the anal fissure was ‘inconclusive’. The applicant’s counsel said that the prosecutor had conceded that the medical evidence did not assist the prosecution case. And the judge had directed the jury that they should be careful about drawing any inferences based on the presence of the anal fissure.
The complainant had also given evidence that he never told anyone about the sexual abuse until he told his girlfriend in 2008. That was because he felt that he was in ‘grave danger’ from the applicant if he told anyone.
The applicant now seeks leave to appeal[2] against his conviction based on a single ground, namely that fresh evidence demonstrates that a substantial miscarriage of justice has occurred. That fresh evidence, and the applicant’s submissions concerning its significance are, in summary, as follows:
(a)In 2017 the complainant made allegations of sexual abuse in relation to two men, Shaun Keast and Ben Keast (Ben being Shaun’s son). This abuse was alleged to have occurred between 2003 and 2005. It included an allegation that Shaun Keast had forced the complainant to insert a bike pump into his anus and pump it. The complainant gave a statutory declaration to police in 2018 concerning these allegations of abuse (‘2018 statutory declaration’).
(b)The applicant submitted that the 2018 statutory declaration and the complainant’s evidence at the Keasts’ committal were inconsistent with his 2010 statutory declaration and his evidence at the applicant’s trial.
(i)First, he gave evidence of the bike pump incident, which was said to be inconsistent with the statement in his 2010 statutory declaration that he had never done anything that could have caused any injury to his anus.
(ii)Secondly, he gave evidence that sometime in the period of 2003 to 2005 he had told Shaun Keast about the abuse by the applicant. This was said to be inconsistent with his earlier evidence that the first time he told anyone of the abuse was 2008, when he told his girlfriend.
(c)The complainant also gave evidence that he had tried to commit suicide twice, in 2003 (when he was 11) and in 2008 (when he was 15), and that he had not been ‘mentally stable’ at the time of the applicant’s trial. This was said to be relevant to his credibility and reliability as a witness at the applicant’s trial.
(d)The complainant also gave evidence that he had received financial compensation in relation to the applicant’s alleged offending when he was in his early 20s, and that he had had financial difficulties around that time. This was said to be relevant to the complainant’s credibility, in that an intention to claim financial compensation for the abuse provided a motive to lie.
[2]The applicant sought an extension of time within which to file his application for leave to appeal. The respondent conceded that an extension should be granted, and an extension was granted by the Court on 19 May 2022.
I note for completeness that in August 2022 the Keasts were acquitted of all the charges they faced concerning the complainant. In relation to the bike pump incident, the judge withdrew that charge from the jury and no evidence about it was given at the Keasts’ trial.
The evidence above was not disclosed to the applicant until September 2021. The respondent concedes that the evidence in question is ‘fresh’ — that is, it was not available to the applicant at the time of his trial and could not have become available with the exercise of reasonable diligence.
For the reasons that follow, I would grant leave to appeal, allow the appeal and enter a verdict of acquittal.
(2)Relevant principles
There was no dispute between the parties concerning the principles applicable to an appeal based on fresh evidence. They were set out by this Court in R v Nguyen and Tran,[3] which has since been followed many times.[4] In substance, where the evidence in question is fresh, this Court will also need to be satisfied that:
(a)the evidence is apparently credible;
(b)the evidence is relevant and otherwise admissible; and
(c)there is a significant possibility[5] (meaning a real and not remote chance, regardless of whether it is less or more than 50 per cent) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial.
[3][1998] 4 VR 394, 400–1 (Kenny JA, Winneke P and Callaway JA agreeing at 395) (‘Nguyen and Tran’).
[4]See, eg, Brown v The Queen [2020] VSCA 26, [11] (Kyrou, Niall and Emerton JJA); Perryman v The Queen [2019] VSCA 252, [21] (T Forrest, Emerton and Weinberg JJA).
[5]In Nguyen andTran [1998] 4 VR 394, 401 Kenny JA left open an alternative formulation of ‘likelihood’, rather than ‘significant possibility’, but then expressed the view that there is no real practical difference between the two formulations. More recently, in Hague v The Queen [2019] VSCA 218, [208] (Ferguson CJ, Niall and Weinberg JJA), this Court observed that the phrase ‘a significant possibility’ reflected the approach taken by the High Court on a number of occasions in relation to fresh evidence.
More recently, the final proposition was framed as whether the appellate court concludes that the jury ‘might have entertained a doubt’.[6]
[6]Bowden (a pseudonym) v The Queen (2017) 54 VR 135, 138 [6] (Maxwell P and Kidd AJA); [2017] VSCA 46 (‘Bowden’).
Of course, the relevant statutory question pursuant to s 276 of the Criminal Procedure Act 2009 in an appeal of this kind is whether this Court is satisfied that there has been a substantial miscarriage of justice. The principles set out in Nguyen and Tran do not replace the statutory text.[7] Nor are they to be understood as ‘hard and fast rules’; rather, they provide ‘practical guidelines’ that can assist the Court in determining whether it is satisfied that the fresh evidence is such as to cause the Court to conclude that there has been a substantial miscarriage of justice.[8] It is convenient, however, to utilise the principles set out in Nguyen and Tran to assist in determining whether, in this case, a substantial miscarriage of justice has occurred.
[7]See, eg, Vinaccia v The Queen [2022] VSCA 107, [152]–[153] (T Forrest and Emerton JJA), [646] (Walker JA) (‘Vinaccia’); Bowden(2017) 54 VR 135, 142 [33] (Priest JA, Maxwell P and Kidd AJA agreeing at 137 [1]); [2017] VSCA 46; Gallagher v The Queen (1986) 160 CLR 392, 395 (Gibbs CJ); [1986] HCA 26.
[8]Vinaccia [2022] VSCA 107, [152]–[153] (T Forrest and Emerton JJA).
In the present case the respondent conceded that the fresh evidence is apparently credible, but took issue with the proposition that it is relevant and otherwise admissible, and with the proposition that it raises a significant possibility that the evidence, if believed, would have led the jury, acting reasonably, to acquit.
(3)The parties’ submissions
The applicant contended that the fresh evidence is relevant and admissible. He further contended that, had the fresh evidence been led at trial and believed, there is a significant possibility that the jury, acting reasonably, would have acquitted him. In support of the latter proposition, he relied on the following matters:
(a)the jury may have viewed the anal fissure as corroborative of the complainant’s account when this was not justified, notwithstanding the prosecution’s ultimate decision not to rely upon it; and/or
(b)further and in any event, the fresh evidence detracts from the complainant’s reliability and credibility in a fundamental way; and/or
(c)the defence was denied the opportunity to cross-examine the complainant in relation to critical matters; and/or
(d)less critically on its own, but relevantly when combined with the matters above, the defence was not aware at the time of the applicant’s trial that the complainant would ultimately be financially compensated in relation to [his] allegations of abuse against the applicant; and/or
(e)the jury clearly had some doubts regarding the complainant’s credibility and/or reliability, as they acquitted the applicant on Charges 2 and 4, despite the complainant giving evidence in support of those charges; and
(f)there were significant problems with the complainant’s evidence, including him adding alleged incidents at committal and at trial, failing to swear up to previously alleged incidents, and describing entirely different incidents as the last offence in his statutory declaration dated 20 January 2009 and his statement dated 11 October 2010.
In contrast, the respondent contended that the evidence was not relevant and admissible. Two reasons were given for that submission.
(a)First, in so far as the evidence concerned a possible cause of the anal fissure, the respondent pointed out that the anal fissure was not relied upon by the prosecution as corroborative of the complainant’s evidence. Thus, it was contended, the evidence concerning the bike pump was not relevant to a fact in issue.
(b)In so far as the evidence concerned the complainant’s earlier disclosure to Shaun Keast about the applicant’s offending, the complainant’s suicide attempts and the fact that the complainant ultimately received financial compensation, the respondent submitted that those were ‘not of any great moment with regards to the applicant’s credibility’; rather, it was submitted, they were ‘broadly supportive of his version of events that he was abused by the applicant’, thus their relevance is ‘borderline, at best’.
More significantly, the respondent contended that this Court could not conclude that the fresh evidence might have led a jury, acting reasonably, to acquit the applicant. That was because ‘the real power of the fresh evidence is said to lie in the contradiction of the complainant’s statement that there was no other explanation’ for his anal fissure. However, the respondent submitted that, because that statement was not led before the jury, it therefore could not have created any risk that the jury would have used the existence of the anal fissure as corroboration of the complainant’s account. In other words, the respondent submitted that the fact that a statement that was not led could now be challenged could not be said to give rise to a substantial miscarriage of justice.
Further, the respondent pointed to the manner in which the trial was conducted in relation to the evidence concerning the anal fissure:
(a)the prosecutor did not rely on the medical evidence as corroborating the complainant;
(b)defence counsel underlined that non-reliance in her address; and
(c)the trial judge gave the jury a direct instruction not to infer anything from the anal fissure.
The respondent submitted that, in light of those matters, it would be speculative to conclude that the jury had improperly reasoned that the cause of the anal fissure was the alleged penetration by the applicant, and that the jury had used that to corroborate the version of events given by the complainant. The respondent submitted that the applicant’s case ‘presupposes that the jury failed to discharge its obligations appropriately’, but that there is no basis to so speculate. Further, the respondent submitted that it is unclear how the evidence concerning the anal fissure corroborated the conviction on charge 6, but not charges 2, 3 and 4, on which the applicant was ultimately acquitted.
In oral argument, the respondent did not accept that there was necessarily any inconsistency between the complainant’s statement in his 2010 statutory declaration that he had not done anything in his life that could cause an anal fissure and his later statement in his 2018 statutory declaration that he had, at Shaun Keast’s instigation, inserted a bike pump into his anus and pumped it. That was because the complainant had referred in his 2018 statutory declaration to his injury as already existing.
Alternatively, the respondent submitted that, even if there was an inconsistency, it had been satisfactorily explained by the complainant in his evidence at the Keasts’ committal. In that regard, the respondent submitted that the complainant’s evidence at the Keasts’ committal was indicative of the kind of questioning that could have been pursued at trial, and of the kind of answers that might have been given by the complainant in response, but also accepted that the complainant’s answers could have been different, given that by the time he gave evidence at the Keasts’ committal he was older and had already had experience giving evidence in Court. The respondent pointed to the complainant’s explanations for his 2010 statutory declaration, namely that:
(a)the bike pump incident had occurred after the applicant’s abuse, so he did not think that the bike pump incident was relevant, because he already had pain and bleeding prior to that incident;
(b)the insertion of the bike pump was not his fault, because he had been forced to do it by Mr Keast;
(c)he was focusing on the abuse he said the applicant had perpetrated, not on later events;
(d)he did not think anyone would believe him if he made a second allegation of abuse; and
(e)he was ‘going through a lot’ at the time of his 2010 statutory declaration.
The respondent also submitted that there was no inconsistency between the complainant’s statement in his 2018 statutory declaration that he had told Shaun Keast ‘details of the abuse’ sometime between 2003 and 2005, and his statement in 2010 that the first time he had told anyone about the applicant’s sexual abuse was in 2008, when he told his then girlfriend. That was because the abuse that the complainant had alleged against the applicant involved non-sexual as well as sexual abuse, and so when he said he had disclosed ‘details’ of ‘the abuse’, it did not mean that he had disclosed the sexual aspects of the abuse. Understood in that way, there was no inconsistency.

Alternatively, the respondent submitted that, even if there was an inconsistency, it had been satisfactorily explained by the complainant in his evidence at the Keasts’ committal, where the applicant gave evidence that he had not told Shaun Keast that he was sexually abused, only that he was ‘abused and hit’.
Finally, the respondent submitted that the matters said to go to the complainant’s credit were ‘of little moment’ and were ‘readily explicable by the complainant being the victim of sexual abuse by two sets of perpetrators (a sad, but not entirely unlikely situation)’.
Given the appropriate concessions by the respondent, there are two issues to be resolved in this appeal. The first is whether the fresh evidence is relevant and admissible, the second is whether, had it been admitted at trial and believed, there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant.
(4)Relevance and admissibility
In my opinion the fresh evidence is both relevant and admissible. I note that the only basis on which it is said to be inadmissible is its lack of relevance; there is no other basis on which the evidence is said to be inadmissible.
The respondent’s submission that the evidence concerning the bike pump incident is not relevant turns on the proposition that, if that evidence is inconsistent with any of the complainant’s evidence at the applicant’s trial (which the respondent did not concede), it is inconsistent only with the complainant’s statement, in his 2010 statutory declaration, that he had never done anything that could have caused his anal fissure. That statement was not led at trial. That is true. However, there are two reasons why that is not sufficient to render the fresh evidence irrelevant.
(a)First, there was considerable evidence given at the trial by Dr Parkin concerning the possible causes of the complainant’s anal fissure. That evidence was adduced on the basis that it was relevant. The fresh evidence would have been a further possible cause, and could have been put to Dr Parkin. It would thus have been relevant for that reason.
(b)Second, had the fresh evidence been available to the applicant at the time of his trial, it is likely that he would have put to the complainant the statement in the 2010 statutory declaration, and then put to him his later sworn evidence at the Keasts’ committal concerning the bike pump incident. In that regard, the relevance of the fresh evidence does not fall to be assessed as if the trial would have proceeded exactly as it in fact proceeded, simply with the insertion of the fresh evidence into the record. If the fresh evidence opened a possible line of cross-examination, including the possibility that a prior statement might be put to a witness, that must be taken into account in the evaluation of the relevance of the fresh evidence. In oral argument the respondent accepted that this is the appropriate way in which to assess the fresh evidence.
In relation to the other fresh evidence, concerning when the complainant first complained of the applicant’s sexual abuse and the complainant’s mental health issues, the respondent’s written submissions all but conceded that that evidence was relevant, the submission being that the relevance of these matters was ‘borderline, at best’. In my opinion, the timing of the first complaint was plainly relevant to the issues raised at the trial, which turned on the truthfulness of the complainant’s account, there being no other direct evidence of the offending. I also accept that the evidence concerning the complainant’s mental health was relevant to his reliability.
However, I accept the respondent’s submission that the evidence that the complainant had, after the trial, obtained financial compensation in relation to the abuse he alleged had been perpetrated by the applicant was not relevant and is thus inadmissible. I note that there was no evidence before this Court that the complainant had applied for such compensation at the time of the applicant’s trial, nor any evidence that he intended to do so. This aspect of the fresh evidence concerned a step that the complainant took to exercise a legal entitlement to claim compensation for a crime that had been committed against him. The fact that a person makes a claim of that kind, and receives compensation, after a conviction has been recorded in relation to the offending they allege, is not in and of itself probative of a fact in issue at the trial. The bare fact that such a claim is granted after trial says nothing about the complainant’s credibility at trial. Were it otherwise, in every case where, after a trial, a complainant pursued his or her entitlement to compensation, there could be an application to adduce that application as fresh evidence that could have been used at trial. Plainly that cannot be so, and the applicant accepted as much.
Of course, if the account the complainant gave in an application for compensation differed from the account given at trial, such evidence might be relevant; but that is not this case. Rather, the applicant sought to draw attention to the fact that the complainant had financial difficulties and a gambling problem at the time of the trial. However, in my opinion that is not sufficient to make the evidence of his financial compensation relevant.
(5)Significant possibility of acquittal?
The real question for this Court is whether the fresh evidence is such as to give rise to a significant possibility that the jury, acting reasonably, would have acquitted the applicant, had the fresh evidence been led and believed. I consider that the fresh evidence concerning the bike pump incident does give rise to such a possibility. In explaining why that is so, it will be necessary to set out in some detail the evidence led at trial concerning the anal fissure, the contents of the complainant’s statutory declaration, and the evidence the complainant gave at the Keasts’ committal hearing.
(a)The evidence concerning the anal fissure
(i)The first complaint to police
In January 2009 the complainant made a statement to the Tasmanian police concerning the applicant’s alleged offending. At that time he signed a statutory declaration (‘2009 statutory declaration’) in which he said that the applicant had raped him on several occasions. He also said that after each occasion he had noticed bleeding from his bottom. He said as follows:
I didn’t ever go to the doctor to get checked out. The bleeding from my bottom stopped after a little while but started again soon after and continues to bleed to this day when I have a poo. I am not sure if there is any tearing or scars as I have not been to get checked out. I have no idea why [the applicant] did this too [sic] me and he never ever said why.
The complainant also described the non-sexual physical abuse he alleged the applicant had engaged in, as follows:
[The applicant] started doing things like pushing me down the stairs. Our unit was a 2 storey unit and had about 20 steps from the bottom level to the top level. My bedroom was on the top level across the hall from mum and [the applicant’s] room. [The applicant] would come up behind me and push me down the stairs. I remember having bruises on my hips, arms and legs from being pushed down the stairs. I didn’t ever tell anyone about what was happening as [the applicant] threatened to kill me if I did. I can’t remember and any dates related to these assaults but they happened quite regularly for about 6 months.[9]
(ii)Dr Stillger’s examination
[9]Emphasis added.
In February 2009 the applicant was examined by Dr Stillger, at the request of the Tasmanian police. Dr Stillger’s notes were as follows:
Examination:
GIT: PR Blood, anal fissure present
Actions:
Prescription added: RECTOGESIC ANAL DINT. 0.2% w/w topically pr when required
Prescriptions printed:
RECTOGESIC ANAL DINT. 0.2% w/w topically pr when required
Letter Created - re. Specialist New Referral to MR ASAR ALSAFFER.
at age 2 had bowel biopsy - normal
Dr Stillger gave evidence at the applicant’s committal but not at his trial. She found that the complainant had an anal fissure. The circumstances of her examination were as follows (as described in her evidence at the applicant’s committal):
(a)She had been given the statutory declaration that the complainant had made to the Tasmanian police.
(b)She did not take an oral history from the complainant concerning the matters in the statement, because she believed that he was distressed about recounting the history again to another person.
(c)The complainant’s mother and a police officer were present in the room prior to her conducting an examination of the complainant.
(d)The complainant told Dr Stillger that he had had bleeding problems from the rectum for 10 years. She asked if he had had problems with constipation. She did not ask about any other bowel problems he might have had. She did not recall who she asked, noting that there were three people present at the time.
(e)She said that the complainant told her that he did not have any constipation problems.
(f)She could not recall if the complainant’s mother had said anything about constipation or bowel issues. However, she recorded in her notes that the complainant had had a bowel biopsy at age 2. She accepted that a bowel biopsy was not a routine matter at that age, but she did not ask why the complainant had had a bowel biopsy. She accepted that she ought to have followed up that matter.
(g)She also accepted that very hard stools and problems passing motions would be a possible reason for such a biopsy. She also accepted that a history of that kind might be relevant to why a person might have developed an anal fissure, and that more generally straining and constipation can cause anal fissures.
(h)She agreed that an anal fissure is not diagnostic of anal penetration or of sexual abuse.
(i)She provided the complainant with a letter of referral to a specialist and prescribed an anal ointment for him to apply topically.
(iii)The complainant’s 2010 statement to police
In October 2010 the complainant made his 2010 statutory declaration to Victoria Police. It is convenient to set out the key passage from that statutory declaration again:
I still have problems with bleeding from my bottom today. I have been told by a doctor that I have an ‘Anal Fissure’. There is nothing I have done in my life that would cause any injury to my anus. I am not aware of any medical conditions as a child or teenager that would explain the condition. I believe it must be a result of [the applicant] raping me all those times with his penis and his baton.[10]
(iv)The complainant’s evidence at the applicant’s committal
[10]Emphasis added.
On 23 November 2011 the complainant gave evidence at the applicant’s committal proceeding. Relevantly, he said that:
(a)his statutory declaration and statements were true and correct;
(b)he did not recall ever having problems with constipation;
(c)he did not recall having a bowel biopsy at age 2;
(d)he had not talked to Dr Stillger about his history, however he had told her that he had had bleeding from the rectum for 10 years;
(e)his mother had talked to Dr Stillger, but he did not recall what she had said;
(f)he did not remember being referred to a specialist by Dr Stillger.
(v)Dr Parkin’s examination of the complainant
On 28 November 2011 Dr Parkin examined the complainant. She had been provided with Dr Stillger’s examination notes. Dr Parkin’s statement after her examination included the following:
History
A history to guide the examination was taken from the subject, [the complainant], who stated the following to me:
-I experienced physical and sexual assaults
-Anal penetration occurred with penis and with a baton
-Blood on toilet paper after the assaults
-Pain in the backside since the assaults — qualified = in and around the anus
-There was blood after penetration each time and pain on going to the toilet, small amount of blood
-At 12 years of age he felt the pain in his anal area — coming and going — intermittent
-Ongoing always been there since the assaults
-Last 3–4 years very painful
-Blood in stool when going to the toilet and currently still gets some on the toilet paper
-No further assessment or treatment since 2009
On direct questioning, the subject, [the complainant] told me:
-General pain around the anus daily
-More pain on passing stools
-Objects used for penetration — penis and baton
-Unsure if the alleged assailant had ejaculated
The above history was taken in order to direct the examination and does not necessarily constitute a detailed account of the entire event.
Past Medical History
A past medical history was taken and contained no relevant information to the case or my opinion.
Later in her statement Dr Parkin said this:
OPINION
In summary, [the complainant] is [a] twenty year old man whom I examined at least 10 years after he was allegedly physically and sexually assaulted.
Dr Stillger identified an anal fissure when the subject was examined on the 18^th February 2009. Anal fissures may result from penetrative blunt trauma such as penetration with a penis or a finger or an object.
There are, however, several other means that are unrelated to penetrative trauma, including the trauma associated with the elimination or the passage of hard stools and explosive diarrhea, or disease processes such as inflammatory bowel disease (Crohn’s disease), sexually transmitted infections (syphilis) and skin diseases. Furthermore, many anal fissures are idiopathic with no identifiable underlying disease process.
…
Anal fissures can be chronic and thus it is possible that the fissure identified by Dr Stillger had been present for many years. Once the tear occurs it begins a cycle leading to repeated injury through spasms pulling fissure edges apart with subsequent bowel actions.
The longitudinal band of scar tissue identified in this examination is likely to be the healed fissure identified by Dr Stillger in 2009.
The current pain and bleeding identified by the subject may be a consequence of a chronic tear deeper in the lining of the canal or may be due to the presence of haemorrhoids (swollen and inflamed veins in the anus and/or lower rectum)
The injury evident in the perianal area may have been caused by blunt trauma following attempted or successful penetration of the anus by a blunt object. However, other mechanisms may have caused this injury. I am not able to exclude these other possibilities.
At the applicant’s trial, in August 2012, evidence relevant to the anal fissure came from three witnesses: the complainant, his mother and Dr Parkin (who also gave evidence in relation to Dr Stillger’s examination of the complainant).
(vi)The complainant’s evidence at the applicant’s trial
The complainant’s evidence was that he had had an anal fissure diagnosed in 2009 by Dr Stillger. He said that she had not asked him for a medical history before she examined him. He accepted that he had said he did not have a history of constipation, because he did not remember any such history. He said that he did not know what his mother said to Dr Stillger, because he ‘wasn’t there’. He did not hear his mother tell Dr Stillger about the bowel biopsy. He said that Dr Stillger had not referred him to a surgeon or prescribed any ointment.
In relation to his examination by Dr Parkin, the complainant said that she had not asked him about his medical history, although he had told her about his pseudo-seizures.[11] The following exchange then occurred:
[11]Pseudo-seizures are also referred to as a ‘somatoform disorder’, which means physical symptoms which have no physical or organic cause, and are thought to come from psychological issues or stress.
Did she [Dr Parkin] ask you whether you had a history of constipation as a child?---She did and I said no, because my mum never told me about it.
You were asked questions about that at the committal, weren’t you?---Yes, that's correct.
It was put to you, wasn’t it, that there was a history?---Yes, there was a history, yes.
And so even though you couldn’t remember it, you would have known about that?---I wasn’t really thinking about the committal, I was thinking about the medical examination.
So you didn’t think to say to her ‘Look, I can’t remember it but I believe that I went to hospital about that’ or that ‘I had this problem when I was a child’?---I didn’t mention that to her at all.
…
This is the situation, isn’t it: You didn’t tell Dr Parkin about the history of constipation because you didn’t want her to know that there might be some other cause for this anal fissure, did you?---She didn’t ask that question to me at all, so I didn’t.[12]
[12]Emphasis added.
He also said that he told Dr Parkin that he still had an anal fissure and that it was bleeding regularly. He denied that she told him that the fissure was now healed.
The complainant accepted that he had never told anyone about the bleeding from his anus until 2008, when he told his ex-girlfriend. In particular, he never told his mother or any other doctor (until he told Dr Stillger).
(vii)The complainant’s mother’s evidence at the applicant’s trial
At trial the complainant’s mother, TC, gave evidence concerning the complainant’s admission to hospital for ‘intractable constipation’. This occurred in 1994, when the complainant was aged 3½. He had had an abdominal x-ray, some medication to soften his stools, and faeces manually removed from his bowel. He had also had an enema. Her evidence was that this was a long-term issue that had gone on for several months, and had involved more than one manual removal of faeces.
TC’s evidence was that a week after his initial admission (to Cabrini Hospital) the complainant was admitted to the Royal Children’s Hospital because he had not used his bowels since his admission to Cabrini. It was at that time that a bowel biopsy was conducted, but it revealed no physical cause of his constipation.
TC’s evidence was that the complainant’s issues with passing stools continued up until he started school, and that after he had started school she had given him an enema on ‘a couple of occasions’ to assist him in moving his bowels. That involved inserting ‘a little tablet’ into the complainant’s anus.
(viii)Dr Parkin’s evidence at the applicant’s trial
At trial, Dr Parkin initially gave evidence on a voir dire. Her evidence was later adduced before the jury, after the complainant had given his evidence. As will emerge, there were various inconsistencies between the complainant’s account of his examination by Dr Parkin and Dr Parkin’s account of that examination.
At trial, Dr Parkin gave evidence that she had observed scar tissue in the ‘six o’clock position’ of the anus, which indicated healing in that area. She said that the scar tissue was in approximately the same area as the fissure observed in 2009, and although she could not say directly that it was a healed fissure, it was suggestive of that.
Her evidence was that the age of an anal fissure cannot be determined. The symptoms associated with an anal fissure included pain on passing a stool, blood on the toilet paper, blood in the toilet bowl, and pain in a seated position on a daily basis. Her evidence was that there was ‘a multitude of explanations for an anal fissure’, including:
(a)insertion of a blunt object into the anus, causing it to split and tear;
(b)constipation;
(c)explosive diarrhoea;
(d)inflammation or skin conditions in that area;
(e)Crohn’s disease; or
(f)ulcerative colitis.
She said that the complainant’s anal fissure ‘may have been caused by blunt force trauma’, but that she could not exclude any of the other possible causes.

In cross-examination, Dr Parkin’s evidence was that she had read Dr Stillger’s notes before consulting with the complainant and that she took a medical history from him. She said that this included asking the complainant direct questions about his medical history. This was inconsistent with the complainant’s account of what occurred, as set out above.
Dr Parkin said that she had not observed any blood when she did her examination of the complainant. She accepted that blood had been observed by Dr Stillger. She said that blood being present upon examination could come from an anal fissure, but could also come from internal haemorrhoids, which are not diagnostic of trauma.
Dr Parkin said that she had asked the complainant whether he had had constipation as a child, and he said that he had not. She accepted that, when the complainant told her this, she assumed that there was no relevant medical history. She also accepted that in fact the complainant had a relevant medical history indicative of an anal fissure that was completely separate from any type of sexual abuse. Dr Parkin’s account was again inconsistent with the complainant’s account: he had denied that Dr Parkin had asked him about constipation (although he had also said that she had asked him, and he had said no).
Dr Parkin agreed that although she was aware of the bowel biopsy, because Dr Stillger’s notes referred to it, she (Dr Parkin) had not made any further inquiries about the reason for a bowel biopsy having occurred at age 2. She accepted that if the reason for the bowel biopsy was constipation, that would have been relevant as a possible cause of an anal fissure. She also agreed that manual disimpactation, involving removal of faeces from the rectum with a finger or fingers, is a form of blunt trauma to the anus that ‘may well’ cause an anal fissure. She said that an enema could cause an anal fissure, although it would rarely do so.
Dr Parkin said that she asked the complainant about the referral to a specialist, Mr Alsaffer, and he said that he had been referred, but had not been to see Mr Alsaffer. This again was inconsistent with the complainant’s account of what occurred. Dr Parkin said that he also acknowledged having been prescribed the ointment, and told her that he had used the ointment. This too was inconsistent with the complainant’s account.
Dr Parkin said that she had told the complainant that he had what appeared to be a healed anal fissure. Again, this was inconsistent with the complainant’s account of what occurred.
Dr Parkin said that the complainant had reported ongoing pain and rectal bleeding.
(a)In relation to the report of continuing pain, she accepted that she only had what he had said as support for that. She also accepted that his report of pain could be false; or it could be from the scar tissue; or it could be from a cause ‘higher up and internally’, that was unrelated to the anal fissure.
(b)In relation to his report of bleeding, she accepted that that report could be false. She said she did not make any clinical observations consistent with bleeding when she examined him, and accepted that internal haemorrhoids were a possible cause. She said she had not conducted an internal examination that could have revealed a higher fissure or internal haemorrhoids.
Finally, Dr Parkin gave evidence that an anal fissure is not diagnostic of anal penetration, nor is it diagnostic of sexual abuse. The most that she could say was that the anal fissure, which she had not directly observed, ‘could be consistent with some form of trauma to the anus’. Dr Parkin agreed that it was not possible to age an anal fissure, or a healed anal fissure.
A document entitled ‘Anal Fissure Information Sheet’ was tendered through Dr Parkin. That document contained information about constipation as a common cause of anal fissures in children.
(ix)The prosecution’s closing address
In her closing address, counsel for the prosecution said as follows concerning Dr Parkin’s evidence:
Dr Parkin gave evidence about the anal fissure and the history of the anal fissure that [the complainant] suffered from. But what she said was that there wasn’t much you could do with that evidence in terms of forming an opinion, and she said that because there had been such a length of time between the time of the offending when [the complainant] was a little boy and her examination, I think it was last year or the year before, that she couldn’t really give an opinion.
Her opinion was inconclusive, and she certainly couldn’t say that the anal fissure was indicative of abuse, but it was something that [the complainant] suffered from, that there were other reasons that could have brought that anal fissure into play and she couldn’t make a definitive finding about the existence of that anal fissure.
And what does that leave you with? In this case, what that means is that the evidence of [the complainant], in assessing the evidence and making your decision, and deciding whether you’re satisfied beyond reasonable doubt of these charges is really very, very important … .[13]
(x)Defence counsel’s closing address
[13]Emphasis added.
Counsel for the applicant said as follows in her address:
The medical evidence doesn’t assist you and I’ll come back to the medical evidence because there’s some very important aspects of that that would assist you or will assist you in rejecting [the complainant’s] evidence and I’ll come back to that.
…
A very good example of the danger of making an unfounded assumption in a situation like this, and that’s the assumption that was made both by Dr Parkin, the doctor who came along and gave medical — medical opinion evidence in this case and apparently her predecessor Dr Stillger who’s the doctor in Tasmania that you heard about that also examined [the complainant].
Dr Stillger and Dr Parkin both assumed apparently that there was no relevant medical history that might have caused the injury that Dr Stillger saw and the apparent healed injury that Dr Parkin saw that you might think was the same injury. Both of them assumed there was no history of — there was no medical history of relevance and there was no medical history of constipation. They both assumed apparently that because the bowel biopsy that Dr Stillger was told about by [the complainant’s mother] in the presence of [the complainant] if you accept [the complainant’s mother’s] evidence, and that Dr Parkin knew about because it was on the notes, they both assumed that the bowel biopsy was normal that procedure couldn’t have any relevance to what they observed when they examined [the complainant].
Now, true enough, the prosecutor has conceded that that evidence doesn’t assist the case. But just pause before you put that evidence to one side, and think about how dangerous it can be to make an assumption about something as important as that. Because it’s more good luck than good management that we’re now at the point where the Crown isn’t relying upon that evidence to support the evidence of the complainant.
…
You now know that this young man experienced anal trauma — if you want to call it that — because of medical procedures before and during the time that he complains he was abused by [the applicant]; he was suffering from a medical condition that he purports not even to remember and that he didn’t bother to tell the second doctor, Dr Parkin, about when he was examined by her.
And you could have been sitting here in the position of listening to evidence about an injury which could be consistent with what [the complainant] complained of without knowing anything about that and how dangerous would that have been and how tempting would it have been for you to use that as evidence to support [the complainant].
And two medical practitioners made an assumption that they shouldn’t have made and potentially could have made a conclusion on the basis of that, so that’s the danger of making assumptions and not looking into things properly and not examining things properly.[14]
[14]Emphasis added.
Later the applicant’s counsel returned to the medical evidence, as follows:
Now, since I’ve come back to the medical evidence, can I ask you to think about some of the other things that [the complainant] said in this court and to Dr Parkin about his history and the medical issues and how they affect his credibility as well? Because again, when you look at what he told Dr Parkin, and when you look at what he told the court about his medical examination, you’ve got great conflict in his evidence, and lies or false statements or inaccurate statements about really important things in the context of this investigation and this case.
He told you in this court that he didn’t know anything about the bowel biopsy, but his mother says in February 2000, he was present when she told Dr Stillger about it. And he remembered me asking him questions about it at the committal hearing, which was prior to his consultation with Dr Parkin. So, he knew there was a bowel issue there and he knew there was a constipation issue there, even if he didn’t have a personal memory of it.
A truthful person, when asked about his medical history and history of constipation by Dr Parkin, would’ve said to the doctor, ‘Well, I can’t remember, but my mother has said I had constipation when I was a child’, or, ‘I believe I had a biopsy when I was a child’, ‘I don't remember it, but I think there is a history there’.
Dr Parkin told you that he was lucid and cooperative when she consulted with him. She didn’t support his assertion that he was crying and emotional. She asked him things and he gave a medical history, and he was able to tell her about the seizures. Yet, he was completely untruthful about the most relevant part of his medical history. So, what does that say about his honesty and reliability?
Then, even more significantly, you had the evidence about what else he said to Dr Parkin. Dr Parkin said quite clearly, ‘[the complainant] acknowledged that he had been referred to the surgeon’, and you remember the evidence from the notes about the letter of referral to doctor — I think it was Dr Alsaffer. Dr Parkin said, ‘[the complainant] acknowledged that he’d been referred to the surgeon. He said that he hadn’t actually gone to the surgeon. And he acknowledged that he had received the ointment or been prescribed the ointment and applied it’.
But then he said to you, this jury, when I asked him about that, he said, ‘No, I was never sent to any surgeon’, ‘No, I never — I was never given any ointment, I never had any treatment about this’. And he was outraged that I suggested that to him. But there, you’ve got the evidence about it, you’ve got the medical evidence about that occurring and what he said to Dr Parkin.
Now, you need to be pretty cynical, in my submission, about what you make of that evidence, and I would submit to you that you can conclude from that evidence that [the complainant] deliberately made up the story about not having any treatment because he wanted to create the impression that he still had an injury and that that injury was linked to what he says [the applicant] did.
I mean, [ask] yourselves how could he possibly have forgotten treating a longstanding injury, a longstanding untreated injury, and being referred to a surgeon? How could he possible forget that. And if he did forget that, between November last year — I think it was 28 November last year and now — then how can you possibly believe that he really has an accurate memory of anything?
What I say to you is this, he lied to this court about the treatment and referral because he was determined to make his injury look worse than it was and determined to try and link those so-called symptoms to the allegations against [the applicant]. You should take that lie very seriously. He told the doctor a deliberate lie about his history and his symptoms in the same way he told a pack of lies to you about that treatment and referral.
He was determined to try and have that man convicted, regardless of what the truth really is. And you should take those lies very seriously, and you should take what I say are lies to this court very seriously.[15]
(xi)The judge’s charge
[15]Emphasis added.
The judge told the jury at several points during her charge that they were to make their decision based on ‘all of the evidence’ they had heard during the trial. Early in her charge she told the jury that they had heard from four witnesses: the complainant, his mother, Dr Parkin and the informant. She instructed the jury that it was up to them to decide how much or how little of the witness’s testimony they believed, and what weight to give the evidence of each witness.
The judge dealt with Dr Parkin’s evidence concerning the anal fissure at several different places in her charge. First, she explained that Dr Parkin was permitted to give opinion evidence because of her expertise. Second, she referred to Dr Parkin’s evidence when directing the jury about inferences, as follows:
You have heard evidence in this case about the anal fissure that the accused had when Dr Stillger examined him in 2009 — sorry, the complainant had in 2009. You have heard evidence from Dr Parkin of scar tissue which was in more or less the same position when she examined the accused.
As defence counsel quite rightly pointed out [in her] closing address, you have also heard evidence of the [complainant], as a young child, having a history of, I suppose you could refer to it as chronic constipation. You have heard evidence from Dr Parkin that there are a number of causes for or that could be responsible for someone having an anal fissure and they include explosive diarrhoea, Crohn’s disease, and constipation.
In other words, if we go back to the example that I have given you about the danger of drawing inferences, you will see in this case that while you might say that penetration by an object could cause an anal fissure, so could explosive constipation, so could Crohn’s disease, and so could explosive diarrhoea.
In this case, the matter becomes even more important that you do not draw an inference where it is not appropriate, given that the evidence is that the complainant in this case has a history, as a young child, of chronic constipation, and also a history of penetration of his anus by possibly doctors or nurses to get out impacted faeces. So, that is a really important direction I have given you in relation to the drawing of inferences.[16]
[16]Emphasis added.
Later in her charge, the judge returned to the medical evidence in the course of summarising the evidence, as follows:
Now, you heard — this case you heard some evidence in relation to a medical condition that the accused suffered from and that was the anal fissure and Dr Parkin gave some evidence about that. I am just going to summarise what she said. I am not going to go through all her evidence and all her cross-examination but I will be bringing some — there were some issues which I am going to bring to your attention.
In summary, she said that on examination she found evidence of scar tissue in what she called the 6 o’clock position of the anus and she said that scar tissue indicated that there may have been a fissure there. She said that a fissure is a tear or laceration in the perimetral area which is the pigmented area outside the anus that you can actually visualise. She said that there was no way that a doctor is able to age an anal fissure with any degree of certainty. And she said there were multiple explanations for a fissure including blunt force trauma, constipation, explosive diarrhoea, Crohn’s disease, inflammation.
Cross-examination — she agreed the most she could say was that the anal fissure which she had not actually observed because she saw the scar tissue could have been consistent with some form of trauma to the anus of the complainant.[17]
[17]Emphasis added.
The judge then summarised the manner in which defence counsel had dealt with Dr Parkin’s evidence in cross-examination and in her closing address. She focused on the argument that the complainant had deliberately withheld his medical history — in particular, information about his history of constipation and his bowel biopsy — from Dr Parkin, and said this:
[I]t is really up to you to decide whether the complainant was deliberately withholding this information or whether he did not see it as being important at the time. When he was cross-examined about not giving this information, he did say that he was concentrating on the examination itself rather than the past history or words to that effect, but it is up to you whether you accept that or not.
The judge also referred to the inconsistencies between Dr Parkin’s account of her examination of the complainant and the complainant’s account of that examination, in relation to whether Dr Stillger had referred the complainant to a specialist and whether she had prescribed ointment. Her Honour concluded her directions in relation to the medical evidence as follows:
So, they were the issues that appeared to arise from that evidence. … But I think I pretty much covered what the situation was about the anal fissure when I gave you directions as to the drawing of inferences and the dangers of drawing inferences, where there was an innocent explanation.[18]
[18]Emphasis added.
Following the judge’s charge, counsel raised various matters with the judge, including a matter concerning the manner with which the judge had dealt with the medical evidence, as follows:
[DEFENCE COUNSEL]: Yes, just a couple of things, Your Honour. Firstly, with respect to the medical evidence, the prosecution has stated that they don’t rely upon that evidence and in my submission, the jury ought to be reminded of that, not to form a - - -
HER HONOUR: I think I’ve made it pretty clear I’ve done more than that. I sort of basically said to the jury when I talked about the drawing of inferences that they can’t rely on it because there’s an innocent explanation.
[DEFENCE COUNSEL]: Thank you, Your Honour.
HER HONOUR: And what the prosecution says doesn’t really matter. What I say is what matters.[19]
(b)The bike pump evidence
[19]Emphasis added.
As already noted, the complainant alleged that, sometime between 2003 and 2005, Shaun Keast had forced him to insert a bike pump into his anus and pump it, and that this had caused him pain. His statement to police, by way of a statutory declaration dated 11 June 2018, was as follows:
The next time I vividly remember being sexually assaulted was when I was 13 years old and had just started High School. This time we were standing in the hall way, again at night time, when Shaun handed me a bike pump. It had a ‘L’ type connection attached to the end of the pump. Shaun asked me to insert the pump inside my anus and pump it to try and make my rear end bigger. I did as Shaun instructed because I was scared and did not feel as though could say no to him. I can not remember how many times I pumped it however it was very painful, especially because of my previous injury. Moments after I put the pump down, I went and had a shower.[20]
This incident was the subject of charge 2 against Shaun Keast.
[20]Emphasis added.
In that statement the complainant also described the abuse he had alleged against the applicant, as follows:
When I was living in Chelsea, when I was 6–9 years, I was being sexually abused by my mother’s ex-fiancé for a number of years which had left me mentally broken and feeling very alone. I did not tell anyone about the abuse at the time however I was suffering from injuries sustained from the abuse which caused a lot of distress, discomfort and embarrassment. The main physical injury I sustained was caused when an expandable baton was inserted in to my rectum, causing blood to freely flow from my anus, this is an ongoing problem that I still manage today.

Later in the 2018 statutory declaration he said this:
Eventually, after about a year of knowing Shaun, I started sleeping at his house on weekends, I would have been about eleven and a half at the time. Around this time, I also confided in Shaun and told him details of the previous abuse I suffered at the hands of my mother’s ex-fiancé. I did not tell him about the bleeding from my rectum due to being very embarrassed, however I am sure he knew because it was becoming harder and harder to hide, especially when I was sharing a bed with him.[21]
[21]Emphasis added.
The complainant did not directly allege that Shaun Keast had penetrated his anus, although his evidence was that he often slept in Shaun Keast’s bed and on a number of occasions woke up feeling ‘sore down around [his] groin and bottom area’. Neither Shaun nor Ben Keast was charged with any act involving them penetrating the complainant’s anus (as opposed to the bike pump incident, which involved the allegation that the complainant penetrated his own anus).
The complainant gave evidence at the Keasts’ committal. He was subjected to extensive cross-examination concerning the inconsistency between his statement to police in relation to the applicant and his later allegations against Shaun Keast. Key parts of his evidence at the Keasts’ committal were as follows:
(a)The complainant affirmed that his statement to police in relation to the Keasts was true and correct. He also said that his evidence in relation to the applicant was true.
(b)He reaffirmed his earlier evidence that the first person he had told about the applicant’s offending was his then girlfriend, in 2008. When confronted with his statement to police in relation to the Keasts, where he said that prior to 2008 he had confided in Shaun Keast ‘details of the previous abuse he suffered at the hands of’ the applicant, he said this:
I told him in details about how I [was] abused. Didn’t tell him how I was sexually abused. I only told him that I was abused and hit.
I’m sorry I didn’t state that in my statement, but I told him matters that had happened, and it was about abuse and — abuse and being hit and me having food forced down my throat. Didn’t tell him … about the sexual — sexual stuff.[22]
[22]Emphasis added.
(c)Counsel for Mr Keast read to the complainant his statement to police in relation to the applicant where the complainant had said that there was nothing he had done in his life that would cause any injury to his anus. Counsel asked the complainant how that statement sat with his evidence that he had inserted a bike pump into his anus and pumped it, causing severe pain. The complainant’s response was that the bike pump incident was years after the first incident (with the applicant). The following exchange then occurred:
You’ve said, ‘There’s nothing I’ve done in my life’?---Correct.
So it’s not a question of around the same time, is it?---Well, no. I — I had — I was more concentrating with [the applicant] with the first case ‘cause I didn’t think anyone would believe me with the second.
So - - -?---That’s my honest truth.
So you admit, then, that what you had said there was a choice not to put in what had happened with Shaun Keast?---I was going through a lot.
Do you admit that you had made a choice to leave out the allegations you now make about Shaun Keast when you said that about — when you made your statement against [the applicant]?---Yes.
And you knew at the time you said that that was wrong?---At the time, and I was going to come out with it later in life, which I did, but - - -
Sorry. You were going to come out with what later in life?---This statement.
All right. At the time that [the applicant] was awaiting trial, had you made any statement with respect to Shaun Keast?---No.
And at the time you swore this statement against [the applicant], you’d made no indication of any other potential cause for injuries?---No.
And you say that’s because you didn’t think you’d be believed? ---Yes.
…
Well, at the time you made your statement denying the possibility of any other cause for your injuries, you knew that an injury was relevant to [the applicant]’s trial? ---Correct.
And you knew that the fact that there was no evidence of any other explanation for how you’d received that injury was also extremely relevant for the [the applicant’s] trial?---Yes.
And surely you must have known at the time you said — you made your statement against [the applicant] that if someone else had potentially caused that injury, that was also a matter that was relevant to [the applicant’s] trial?---Can I just have a break for a sec, please?
…
[A break of approximately five minutes then occurred]
[COUNSEL] [J]ust before the break I was asking you that at the time you made your statement against [the applicant], if someone else had potentially caused that injury, that was also a matter that was relevant to his trial. Is that - - -?---Well, no, because as I tried to state before, the incidents with Shaun and Ben happened after of what [the applicant] did to me. So I didn’t find - - -
All right?---I didn’t find it relevant.
Well - - -?---When I was — just — just — just let me talk. When — when this stuff happened with [the applicant], I had a lot of — I had unfortunate things inserted, cleaned up myself mostly every day and put up with the pain. So I continued with that all the way up to I met Shaun. I didn’t think a bike pump would be relevant to mention because I already had that pain and I was already bleeding, kept it pretty personal to myself ‘cause I was a quiet kid.
All right. So you’ve mentioned, firstly, that what happened with Shaun happened years after what happened with [the applicant]. What you allege happened in this matter happened years before you made your statement, didn’t it?---Yes.
And years before you had the forensic medical examination in the [the applicant’s] trial?---Yes.
And you spoke with Dr Parkin for the medical examination, and she asked you to give you a history — a relevant medical history to her?---Yes.
Do you recall — and you knew at the time that you were doing that examination that this was to be used as evidence in the trial of [the applicant]?---Yes.
And you’ve mentioned that you had had pain in the backside since the assaults, being reference to assaults by [the applicant]?---Yes.
And you’ve stated that, ‘It’s ongoing, always been there since the assaults’?---Yes.
What mention, if any, did you make of Mr Keast also inflicting injuries on you? ---Didn’t mention it.
…
All right. So you’ve — you had subjected yourself to a medical examination from Dr Joanne Parkin?---Yes.
It must have been an uncomfortable medical examination?---Yes.
So you knew it was important?---Yes.
Why did you leave that out?---Again, as I stated before, I wasn’t in a good way. I was still fairly young.
I’m talking about the investigations you made - - -?---That’s correct. I was still a fairly young age. I wasn’t mentally stable. I was more concentrating on the [the applicant’s] case.
You recall me asking you just earlier this afternoon whether everything you had said in the [the applicant’s] case was true and correct?---Yes.
And you agreed that it was true and correct?---Yes.
And yet this is plainly wrong, is it not: ‘I – there’s nothing I have ever done in my life that would cause any injury to my anus’?---Well, how is it my fault?
…
I’m not asking you about fault. What I’m asking you is what you’ve said in your evidence — in your statement against [the applicant] was false, wasn’t it?---How’s it false?
‘I am not aware — there — I — there is nothing I have done in my life that would cause any injury to my anus. I am not aware of any medical conditions as a child or teenager that would explain the condition. I believe it must be a result of [the applicant] raping me all those times with his penis and his baton’?---Which is true.
…
All right. You were — you are certain, though, are you not, that the bike pump was inserted into your anus and it caused severe pain?---Which I just said before. The only thing I - - -
I — I’m asking — you are certain about that?---Yes. Yes.
…
It’s not about attributing blame here, but nobody else inserted the bike pump into your anus?---I understand that.
Is that correct?---Yeah, that’s correct, but the way you answered — trying to give me the question was like it was, like, my fault for doing that. Sorry, but that’s just - - -
Right. All right. So what I am just trying to clarify is how — under an obligation to tell the truth, you neglected to mention the — something that’s potentially caused the injury that you had examined when someone’s - - -? ---Well, I’m - - -
- - - facing a trial?---I’ll just say now I had the injury before that bike pump had been inserted.[23]
(d)The complainant also gave evidence that he had received financial compensation as a result of the offences the applicant committed against him. He thought it was around $10,000, although he was unable to recall how much compensation he received.
[23]Emphasis added.
The complainant did not give evidence about the bike pump incident at the Keasts’ trial. It is not entirely clear from the materials before this Court why evidence of that incident was not led. In any event, the consequence was that charge 2, concerning the bike pump, was not left to the jury. The trial judge determined that there was no evidence of that charge that could be capable of sustaining a verdict of guilty. As previously noted, the Keasts were acquitted of all the charges they faced concerning the complainant.
(c)Did the bike pump evidence raise a significant possibility of acquittal?
In so far as the evidence concerning the bike pump incident is concerned, in my opinion had that evidence been adduced at trial there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant. There are two reasons for that conclusion:
(a)first, the evidence about the bike pump incident could have affected the jury’s assessment of the complainant’s credibility;
(b)secondly, that evidence could have provided the jury with an alternative explanation for the undoubted injury that the complainant had to his anus.
(i)The complainant’s credibility
It is necessary to commence by considering whether the complainant’s statement in 2018 about the bike pump incident could have been understood by the jury as inconsistent with his earlier 2009 statutory declaration that there was nothing he had done that would cause any injury to his anus. In my opinion it would have been open to the jury to regard those two statements as, on their face, inconsistent with each other. That is so notwithstanding that in his 2018 statement the complainant also referred to having an existing injury and notwithstanding that the complainant never asserted that he had in fact been injured as a result of the bike pump incident. In my view it is clear that the insertion of a bike pump into the anus, causing pain, would be capable of causing injury to the anus. This was something that the applicant himself had done, albeit that on his account he was forced to do so by Mr Keast.
Plainly if, at the time of the trial, the applicant had known of the complainant’s account of the bike pump incident, his counsel could have confronted the complainant with the statement in his 2009 statutory declaration that he had never done anything in his life that could have caused any injury to his anus. The inconsistency between those two aspects of the complainant’s evidence was capable of reflecting negatively on his credibility at trial. Whether it would necessarily have done so would have turned on the manner in which the cross-examination of the complainant then proceeded. I accept that the cross-examination of the complainant at the Keasts’ committal is indicative of what might have transpired at trial. However, as the respondent accepted, it does not necessarily reveal precisely how the complainant would have dealt with cross-examination at the applicant’s trial, given that at trial he was younger and had had less experience in giving evidence.
Although I have not had the benefit of seeing or hearing the complainant give evidence, it appears to me from the transcript of the Keasts’ committal that the complainant had some difficulty explaining how that statement was consistent with his evidence concerning the bike pump. As discussed above, he gave various explanations for why he said what he said in his 2010 statutory declaration, despite the fact that, on his account, the bike pump incident had already occurred.
(a)The complainant accepted that, at the time he made his statement, he knew that the cause of his anal fissure was relevant to his allegations against the applicant. He also accepted that, despite knowing it was relevant, he had made a choice to leave out of his 2010 statutory declaration the allegations against Shaun Keast. His explanation was, in essence, that he did not think it was relevant because he already had pain and bleeding by the time the bike pump injury occurred. He also said that he was ‘going through a lot’ and that he did not think he would be believed if he made a second allegation of abuse, against the Keasts.
(b)He also accepted that he had failed to tell Dr Parkin about the bike pump incident, but explained that on the basis that he was ‘not in a good way’ and was ‘fairly young’.
(c)He also sought to deflect some of the questions by asking ‘how is it [the bike pump incident] my fault?’ and, when counsel expressly disavowed any allegation of fault, he nonetheless resorted to suggesting that counsel was trying to convey that it was his fault.
In my opinion, none of the complainant’s explanations for what he said in his 2010 statutory declaration, or for his failure to mention the bike pump incident to Dr Parkin, were particularly compelling, and it would have been open for the jury to reject them.
It is clear that the applicant’s defence turned on attempts to discredit the complainant. A key feature of that attempt was to put to him that he had failed to mention his relevant medical history to Dr Parkin so that she would not know that there was some other potential cause of his anal fissure. The applicant’s counsel spent a considerable amount of time revealing the inconsistencies between the complainant’s evidence about his medical examinations and Dr Parkin’s evidence about those examinations. That included inconsistencies between the complainant’s evidence and Dr Stillger’s notes (noting that Dr Stillger did not give evidence at the trial). But, more importantly, as is apparent from the evidence set out above, it included significant inconsistencies between Dr Parkin’s account of her examination of the complainant and the complainant’s account of that examination.
Plainly, the jury did not consider those inconsistencies sufficient to doubt the complainant’s credibility. However, in my opinion if the jury had had before it, as additional inconsistencies, the complainant’s denial of ever having done anything that could have caused an anal fissure, coupled with his later allegation of the bike pump incident, and his failure to tell Dr Parkin about the bike pump incident, there is a significant possibility that the jury would have doubted the complainant’s credibility sufficiently to acquit the applicant. These matters would have provided additional evidence that suggested that on at least two occasions the complainant had sought, inaccurately, to convey that there was no possible cause of his anal fissure other than the sexual abuse he alleged the applicant had perpetrated upon him.
(ii)The causation issue
Secondly, contrary to the respondent’s submissions, there is a real risk that the jury, acting reasonably, may have used the evidence of the anal fissure as support for the complainant’s account of penetration with the baton. Dr Parkin gave evidence that an anal fissure might have a variety of causes, including penetration by a blunt object. The fact that the complainant had had an anal fissure (which was not in dispute) was thus consistent with the complainant’s account. Indeed, Dr Parkin’s evidence could only have been admissible to establish that the anal fissure was consistent with the penetration alleged by the complainant. Thus evidence of penetration with a bike pump as a possible alternative cause of the complainant’s anal fissure would have been relevant to the jury’s willingness to rely on the anal fissure as supporting the complainant’s account of his abuse by the applicant.
Although the effect of the judge’s directions was to urge caution as to the use of the anal fissure evidence when drawing inferences, she did not instruct the jury at any point that they could not use that evidence to reason towards guilt. Rather:
(a)the judge told the jury on several occasions that Dr Parkin was one of the witnesses whose evidence they should consider, and that it was up to them to decide whether to accept or reject that evidence;
(b)the judge directed the jury about why Dr Parkin was permitted to give evidence about her opinion, thus reinforcing the fact that it was something they were permitted to take into account;
(c)the judge gave a direction concerning the drawing of inferences in relation to the anal fissure; and
(d)the judge later provided a summary of Dr Parkin’s evidence, culminating with the position that ‘the most [Dr Parkin] could say’ was that the anal fissure ‘could have been consistent with some form of trauma to the anus’.
It is necessary to say something more about the judge’s direction concerning the drawing of inferences in relation to the anal fissure. That direction was somewhat opaque. The judge did not tell the jury what inference they should not draw. She told them that ‘penetration by an object could cause an anal fissure’, then pointed out that other things could too. She said that it was important that the jury ‘not draw an inference where it is not appropriate’, and pointed out the complainant’s medical history.
Contrary to the trial judge’s view, expressed to counsel after the main part of her charge, I do not consider that the above direction in relation to inferences amounted to a direction that the jury ‘can’t rely on [the medical evidence] because there’s an innocent explanation’. Rather, it was confined to a direction concerning the drawing of inferences, and the jury is unlikely to have understood it as a direction that they should simply disregard the existence of the anal fissure because it was probative of nothing.
That is particularly so when the direction concerning inferences is considered in the context of the other aspects of the trial judge’s charge, noted above. Dr Parkin’s evidence was left to the jury to consider as part of the relevant evidence upon which they could rely, and the trial judge conveyed to the jury that the import of that evidence was that the complainant’s anal fissure was consistent with the allegations of abuse he made against the applicant.
Thus, notwithstanding the prosecution and the defence closing addresses at trial, and the trial judge’s directions, it remains possible — even likely — that the jury could have regarded the evidence concerning the anal fissure, not as itself providing a basis to infer that the applicant’s conduct caused the anal fissure, but as consistent with the complainant’s account and, in that sense, supportive of it.
That being so, had the jury had before them evidence that there was, on the complainant’s own account, an alternative event involving the insertion of a blunt object into the complainant’s anus, there is a real possibility that the jury would have put the medical evidence to one side, leaving them only with the complainant’s account, which would have fallen to be assessed in light of the inconsistencies already discussed.
I note for completeness that I do not accept the respondent’s submission that the jury’s acquittal on charge 4 (which also involved penetration by the security baton) meant that there was ‘no perceptible risk’ that the jury had used the evidence concerning the anal fissure as supporting their conviction on charge 6. To so conclude would be to speculate about the basis for the verdict on charge 4. It is entirely unclear why the jury acquitted the applicant on charge 4, while convicting him on charge 6.[24]
[24]In contrast, there is an explanation for the acquittal on charge 2, which alleged penile penetration, because in his evidence the complainant expressed uncertainty about whether he had been penetrated by a penis or an object on that occasion.

For the above reasons, had the fresh evidence concerning the bike pump incident been adduced at trial, there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant.
(d)The evidence about first complaint
In my opinion, the complainant’s evidence concerning the bike pump incident is sufficient, alone, to mean that the appeal must be allowed. But that conclusion is further strengthened by the complainant’s statement in his 2010 statutory declaration that he had told Shaun Keast about the abuse sometime between 2003 and 2005, in contrast with his evidence at trial that he had told no-one until he told his then girlfriend in 2008.
The respondent submitted that there was in fact no inconsistency between these two matters. This was said to be because the 2010 statutory declaration was to the effect that the complainant had told Shaun Keast ‘details’ of the abuse, but had not told him everything about it; and the abuse had included non-sexual abuse as well as sexual abuse, so the statement should not be understood as a statement that the complainant had told Shaun Keast about the sexual abuse.
I do not accept that submission. Understood in its context, it would have been open for a jury to understand that statement as saying that the complainant had told Shaun Keast about the sexual abuse. The complainant had, earlier in the 2010 statutory declaration, used the term ‘the abuse’ to describe the sexual abuse he said had been perpetrated by the applicant; and his statement that he had not told Shaun Keast about the bleeding from his rectum is consistent with an understanding of his statement that he had told Shaun Keast about ‘the abuse’ as meaning sexual abuse involving penetration of his anus. He also later used the term ‘the abuse’ to describe the sexual abuse he alleged against Shaun Keast.
The complainant was cross-examined about the inconsistency between his 2018 statutory declaration and his evidence at the applicant’s trial concerning who he first told about the applicant’s sexual abuse. His explanation for the inconsistency was that he had not told Shaun Keast of the sexual abuse; he had only told him about the physical abuse. It would have been open for the jury to reject that evidence, in light of the manner in which the complainant used the term ‘the abuse’ as a synonym for sexual abuse throughout his 2018 statutory declaration. In addition, the complainant’s explanation is not consistent with his statement in his 2009 statutory declaration that he ‘didn’t ever tell anyone’ about the applicant’s non-sexual physical assaults, because the applicant threatened to kill him if he did. He was not cross-examined about that at the Keasts’ committal, but he could have been cross-examined about it at the applicant’s trial, had the fresh evidence been then available.
The fresh evidence concerning the timing of the first complaint alone may not have been sufficient to permit a conclusion that, had the evidence been adduced at trial, there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant. However, I give it some weight in combination with the fresh evidence concerning the bike pump incident.
I note for completeness that I do not consider it necessary to rely upon the complainant’s evidence in his 2018 statutory declaration and at the Keasts’ committal concerning his suicide attempts, and his mental health more generally.
(6)Conclusion
For the reasons given above I would grant leave to appeal and allow the appeal. It then remains to consider what orders ought to be made in light of that conclusion.
First, there is a question whether that conclusion means that each of the applicant’s convictions ought to be set aside, or only his conviction on charge 6 (incest). The respondent conceded that, if the conviction on charge 6 was set aside, so too should the convictions on charges 1 and 7. That concession was properly made. The matters canvassed above are principally directed to whether there was a significant possibility that the jury, acting reasonably, would have acquitted the applicant of incest. However, if the jury had acquitted the applicant on the charge of incest (as well as on the other charges on which they acquitted him), there is also a significant possibility that they would have acquitted him on charge 1 (common assault) and charge 7 (threat to kill). The threat to kill the subject of charge 7 was said to have occurred on the same occasion as the events the subject of charge 6. And although the same cannot be said of charge 1, the fresh evidence goes to the complainant’s credibility; had the jury determined him to be untruthful, there is a significant possibility that they would have acquitted the applicant on charges 1 and 7. For those reasons, I consider that the applicant’s convictions on each charge ought to be set aside.
The second issue concerns whether an acquittal on each charge ought to be entered. Section 277 of the Criminal Procedure Act 2009 provides that, if the Court allows an appeal against conviction, it must set aside the conviction and either order a retrial or a judgment of acquittal. That reposes a discretion in the Court.[25] Unless the interests of justice require the entry of a verdict of acquittal, ordinarily an appellate court would order a new trial where there is sufficient evidence to support a conviction.[26] However, there may be factors that suggest that, in a particular case, such a course is not appropriate.[27]
[25]R v A2 (2019) 269 CLR 507, 534 [85] (Kiefel CJ and Keane J); [2019] HCA 35 (‘A2’).
[26]A2 (2019) 269 CLR 507, 534 [84] (Kiefel CJ and Keane J); [2019] HCA 35.
[27]A2 (2019) 269 CLR 507, 534 [85] (Kiefel CJ and Keane J); [2019] HCA 35, citing R v Taufahema (2007) 228 CLR 232, 256–7 [55]; [2007] HCA 11. There, Gummow, Hayne, Heydon and Crennan JJ identified the following matters as factors that ‘conventionally point against orders for new trials’: where a significant part of a sentence has been served; the expense and length of a second trial; where the length of time between the alleged offence and the new trial will prejudice the accused.
In the present case the applicant’s counsel contended that, given that the applicant had served the entirety of his sentence, this Court should enter a judgment of acquittal. That does not, of itself, necessarily mean that an acquittal should be ordered.[28] However, it is also significant that any new trial would occur some 25 years after the alleged offending, with the attendant problems that such delay would bring to any new trial. Further, the respondent conceded that verdicts of acquittal should be entered. Taken with the other factors, I consider that concession to warrant the entry of a judgment of acquittal.[29]
[28]Mokbel v DPP (Cth) [2021] VSCA 94, [61] (Beach and Osborn JJA).
[29]See, eg, Carrott v the Queen [2013] VSCA 90, [69] (Priest JA, Ashley agreeing at [1], Weinberg JA agreeing at [4]; see also Walker v The Queen [2014] VSCA 177, [53] (Osborn JA, Weinberg JA agreeing at [1], Priest JA agreeing at [56]).

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[2022] VSCA 187

2 September 2022