Application by GW pursuant to s 424 Crimes Act 1900 (ACT)
[2024] ACTSC 123
•29 April 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Application by GW pursuant to s 424 Crimes Act 1900 (ACT) |
Citation: | [2024] ACTSC 123 |
Hearing Date: | Decided on written submissions |
Decision Date: | 29 April 2024 |
Before: | Mossop J |
Decision: | 1. Pursuant to r 6 of the Court Procedures Rules 2006 (ACT) (Rules) the requirements of r 34(2) of the Rules are dispensed with and the letter dated 19 April 2023 is taken for the purposes of the Rules to be an Originating Application. 2. The application arising by reason of order 1 is dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION – Form of application required to enliven court’s power to order an inquiry under s 424 Crimes Act 1900 (ACT) – nature of proceedings for application under s 424 – Ch 2 of the Court Procedures Rules 2006 (ACT) applies – r 34(2) requires application be commenced by Originating Application – where applicant commenced proceedings by letter on advice from Registry – requirements of r 34(2) dispensed with CRIMINAL LAW – INQUIRY AFTER CONVICTION – Application for inquiry into conviction under s 424 Crimes Act 1900 (ACT) – applicant convicted at trial of an act of indecency on a young person under the age of 10 – claim of doubt or question about whether the complainant’s report and evidence was a false autobiographical memory – applicant failed to demonstrate that the doubt or question could not have been properly addressed at trial or on appeal – mandatory requirement in s 422(1)(c) not satisfied – application dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 61(1), 421, 422, 424, Pt 20 Crimes (Sentence Administration) Act 2005 (ACT) Court Procedures Rules 2006 (ACT), rr 4, 6, 22, 31, 33, 34, 36, 37, 6007, Ch 2, Ch 5, Div 2.2, Pt 6.2, Dictionary Evidence Act 2011 (ACT), ss 37, 108C Legislation Act 2001 (ACT), Dictionary Pt 1 |
Cases Cited: | Director of Public Prosecutions (ACT) v Martin [2014] ACTSC 104; 9 ACTLR 1 Eastman v Besanko [2010] ACTCA 15; 244 FLR 262 GW v The Queen [2015] ACTCA 15; 19 ACTLR 163 GW v The Queen [2016] ACTCA 9 R v GW [2016] HCA 6; 258 CLR 108 Wotton v State of Queensland (No 4) [2015] FCA 1075; 333 ALR 466 |
Parties: | GW ( Applicant) Director of Public Prosecutions |
Representation: | Counsel P Strickland SC and C O’Neill ( Applicant) A Williamson SC and V Griffin (DPP) |
| Solicitors O’Sullivan Legal ( Applicant) Director of Public Prosecutions |
MOSSOP J:
Introduction
1․GW has applied for an inquiry into his conviction for committing an act of indecency on a person under the age of 10, contrary to s 61(1) of the Crimes Act 1900 (ACT). He is identified by the letters “GW” in these reasons because that is the manner in which he was identified in the earlier proceedings out of which this application arises.
2․The power to order such an inquiry is provided by s 424 of the Crimes Act:
424Supreme Court order for inquiry
(1)The Supreme Court may order an inquiry on application by the convicted person, or by someone else on the convicted person’s behalf.
(2)The registrar must give a copy of an application for an inquiry to the Attorney‑General.
(3)The Supreme Court may consider a written submission by the Attorney‑General or the director of public prosecutions (or both) in relation to the application.
(4)Proceedings on an application are not judicial proceedings.
(5)If the Supreme Court orders an inquiry, the registrar must give a copy of the order to the Attorney-General.
3․The preconditions that must be established for such an inquiry to be ordered are set out in s 422 of the Crimes Act:
422Grounds for ordering inquiry
(1)An inquiry may be ordered under this part into the conviction of a person for an offence only if—
(a)there is a doubt or question about whether the person is guilty of the offence; and
(b)the doubt or question relates to—
(i) any evidence admitted in a relevant proceeding; or
(ii) any material fact that was not admitted in evidence in a relevant proceeding; and
(c)the doubt or question could not have been properly addressed in a relevant proceeding; and
(d)there is a significant risk that the conviction is unsafe because of the doubt or question; and
(e)the doubt or question cannot now be properly addressed in an appeal against the conviction; and
(f)if an application is made to the Supreme Court for an inquiry in relation to the conviction—an application has not previously been made to the court for an inquiry in relation to the doubt or question; and
(g)it is in the interests of justice for the doubt or question to be considered at an inquiry.
Example for par (a) to (e)
John has been convicted of murder. Expert evidence that blood found on John’s jacket shortly after the murder was almost certain to be the victim’s blood was the main evidence connecting John with the murder.
Later DNA testing, by a method developed after all proceedings in relation to the conviction had been finalised (and the time for making any appeal had lapsed), shows that the blood is almost certainly not the victim’s blood. This gives rise to a doubt or question about the blood evidence that could not have been (and cannot now be) properly addressed in any relevant proceeding in relation to the murder, and a significant risk that the conviction is unsafe.
(2)The inquiry is limited to matters stated in the order for the inquiry.
(3)If the inquiry is ordered by the Supreme Court, the court may set limits on the inquiry under subsection (2) despite anything in the application for the inquiry.
4․“Relevant proceeding” as referred to in s 422(1)(c) is defined in s 421 as meaning “a prosecution or other proceeding in relation to the offence, including an appeal in relation to the finding of a court in relation to the offence”.
Material before the court
5․The material before the court is as follows:
(a)Letter dated 19 April 2023 from O’Sullivan Legal to the Supreme Court, attaching:
(i)submissions in support of the application; and
(ii)a report of Professor Jane Goodman-Delahunty dated 31 July 2021.
(b)Letters from the Registrar giving notice of the application to the Attorney‑General and the Director of Public Prosecutions (incorrectly dated 10 May 2022 rather than 10 May 2023).
(c)Letter from the Registrar to O’Sullivan Legal (incorrectly dated 10 May 2022 rather than 10 May 2023) acknowledging receipt of the application and advising of the provision of the application to the Attorney-General and the Director of Public Prosecutions.
(d)Email correspondence from the ACT Government Solicitor indicating that the Attorney-General would not be providing written submissions.
(e)Email correspondence between the Director of Public Prosecutions and the Registrar resulting in an extension of the deadline for the filing of submissions by the Director of Public Prosecutions.
(f)Written submissions provided by the Director of Public Prosecutions on 21 July 2023.
(g)Email from the Senior Deputy Registrar to the Registrar dated 14 August 2023.
(h)Email dated 25 January 2024 from the Associate to Mossop J informing the parties of directions made by Mossop J.
(i)Email from the Director of Public Prosecutions dated 1 February 2024 confirming that no further submissions were to be made as to the form of the application or whether the jurisdiction of the court has been properly enlivened.
(j)Email correspondence dated 7 March 2024 between O’Sullivan Legal and the Associate to Mossop J in relation to an extension of time for the provision of further submissions by the applicant.
(k)Reply submissions on behalf of the applicant dated 8 March 2024.
(l)Email dated 19 March 2024 from O’Sullivan Legal providing, by consent, a bundle of documents relevant to consideration of the application.
(m)The decisions of the Court of Appeal and the High Court on appeal from the applicant’s conviction.
6․The court has also had access to the court files from the original proceedings (SCC 55 of 2013) and subsequent Court of Appeal proceedings (ACTCA 17 of 2014), but it has not been necessary to refer to them.
Factual background
7․The following is a chronology of the underlying proceedings prior to the application for an inquiry.
8․29 March 2012 to 2 April 2012: Period during which applicant is alleged to have offended.
9․21 March 2014: The applicant was tried on three counts of committing an act of indecency upon or in the presence of his daughter, R, and three counts of committing an act of indecency upon or in the presence of his other daughter, H, each of whom was under the age of 10 years.
10․8 April 2014: The jury returned verdicts of guilty on one count relating to R (count 3) and not guilty on two counts relating to H (counts 5 and 6). The jury could not agree on counts 1, 2 and 4.
11․5 May 2014: The applicant appealed his conviction to the Court of Appeal. The grounds of appeal included a ground asserting that the verdict was unsafe and unsatisfactory having regard to the evidence.
12․14 July 2014: The applicant was sentenced to imprisonment for two years. The first three months of that sentence were to be served by periodic detention and the balance suspended upon the applicant signing an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
13․23 July 2014: The service of the sentence was stayed pending determination of the appeal.
14․24 April 2015: The appeal was allowed and a retrial ordered on the basis that the complainant’s unsworn evidence should not have been admitted and that the jury’s attention should have been directed to the unsworn nature of the complainant’s evidence: GW v The Queen [2015] ACTCA 15; 19 ACTLR 163 (GW 2015 COA). The unsafe and unsatisfactory ground was dismissed.
15․16 October 2015: The High Court granted the Crown special leave to appeal from the decision of the Court of Appeal.
16․2 March 2016: The High Court allowed the appeal from the decision of the Court of Appeal and the matter was remitted to the Court of Appeal for consequential orders in relation to the sentence: R v GW [2016] HCA 6; 258 CLR 108.
17․29 March 2016: The applicant was resentenced to imprisonment for two years, suspended for two years and required to complete 200 hours of community service: GW v The Queen [2016] ACTCA 9.
18․31 March 2016: A Notice Declining to Proceed was filed by the Director of Public Prosecutions in relation to counts 1, 2 and 4.
The Crown case
19․The Crown case at trial was summarised by the Court of Appeal in GW 2015 COA at [16]-[38] as follows:
16․Between 2007 and 2012, the appellant was in a relationship with M. The couple lived separately as M resided in China. There were two daughters of the relationship, R (born in March 2007) and H (born in December 2008). Both resided with M.
17․In March 2012, M and her daughters moved to Canberra to live with the appellant. Following a domestic incident on 29 March 2012, police removed M from the home. The appellant obtained an interim domestic violence order preventing M from returning to the home or seeing the children. R and H remained with the appellant. R had recently turned 5 years old and H was 3 years and 3 months old.
18․The Crown alleged that, in the period 29 March to 2 April 2012, the appellant committed sexual acts upon and in the presence of R and H.
Counts 1 and 2
19․The Crown alleged that the appellant took the complainants (who had been sleeping in their own room) into his bedroom, where he offered to remove R’s clothing if she was hot. She said that she was not hot. The appellant removed the clothing of both complainants. R cried. While R and H were lying naked on their backs on the bed, the appellant lay naked on top of R in the “missionary position”, thrusting his pelvis against her pelvis while her legs were in the air and spread apart (Count 1). He repeated the behaviour with H (Count 2). On these counts, the jury could not agree on verdicts.
Counts 3 and 4
20․The Crown alleged that later, either on the same night or on another night, R and H were lying naked on their backs on the appellant’s bed. While standing and holding his penis, the appellant either ejaculated or urinated onto the complainants’ pelvic areas. Afterwards, R obtained toilet paper and wiped the fluid from her body and that of H. The jury returned a verdict of guilty on Count 3 (the incident involving ejaculation or urination onto R). In relation to Count 4 (the associated incident concerning H), the jury was unable to reach agreement.
Counts 5 and 6
21․The Crown alleged that later, either on that night or on another night, R and H were lying naked on their backs on the appellant’s bed. The appellant was also naked. He placed his feet on the complainants’ pelvic areas and stood on them. Afterwards, R and H walked with their legs apart because their pelvic areas were sore. The jury returned verdicts of not guilty on these counts.
22․When M left the appellant’s home, she went to stay with her friend S. Because her English was poor, on 30 or 31 March 2012, M asked S to contact the authorities and inform them that the appellant often walked about naked and may be a sexual risk to the children. It is not clear whether further allegations were made. On 2 April 2012 information was conveyed to Care and Protection Services, and a worker was assigned to investigate M’s allegations. On 2 April 2012, R was questioned, but she made no relevant allegations.
23․On 2 April 2012, R and H were removed from the appellant’s care and placed in foster care. On 13 April 2012, they returned to reside with M, who was living at a refuge. M sought interim Family Court orders, restricting the appellant to limited, supervised access to R and H.
24․On 3 September 2012, the appellant sought extended access. Family Court proceedings were fixed for 14 September 2012. M opposed extended access.
25․M gave evidence that, on 5 September, R told M that she wanted to cry. According to M, R said:
When you were not there, when we were sleeping at dad’s house, dad wouldn’t let us wear clothes to sleep ...
Dad put one hand in front of my bum and another hand behind my bum ...
It’s where I pee ...
Dad pressed on my stomach [demonstrating by pressing hard] ...
Dad open [sic] my legs [demonstrating] ... I was crying.
Dad was very annoying ... He peed on my bum, around this area ... I wanted to use a towel to wipe it but there was no towel ... [H] and I helped each other to the toilet and used a toilet paper to wipe that area.
Dad hurt my bottom ... It was very painful ... Even when I was walking, it was painful
R demonstrated the way in which she had walked.
26․M contacted her friend S and told her of R’s disclosures, including the fact that R had complained of the appellant “weeing” on her.
27․On 6 September, M spoke to a refuge worker, E. R then spoke to E and told her that “daddy put his wee wee in her”. R demonstrated by placing her hand under her crotch and bottom and walking with a waddle. She said that it had hurt and that the appellant had told her that she should not tell anyone. R drew a picture for E.
28․M gave evidence that, on 7 September, when M was cleaning R’s genital area, R told M that the appellant had opened her legs in the same way and it was painful. R also complained that the appellant had used his tongue to kiss her hand, face, bottom and body and said that “dad did every night”. R also said that the appellant had placed one foot on her genital area and the other foot on H’s genital area.
29․M gave evidence of another incident on 7 September. She observed H lying on top of R on a bed, simulating sexual intercourse. M pulled H from R, who was crying. R said:
Little sister was on top of me just like dad ... Painful. Very painful.
30․M said that she had first observed this behaviour on 25 April 2012, and that she made similar observations in June 2012 and on 19 August 2012 (when R told M that H was lying on her “just like dad”). However it was not until 7 September 2012 that M realised the significance of the behaviour.
31․M said that, on 3 October 2012, R told her that she had been warned by the appellant that she should not disclose what had occurred to M or to the police, or she would go to “dowl” (which she illustrated as gaol).
32․Police conducted an evidence-in-chief interview with R on 13 September 2012 (when she was five years and six months old). In the interview, R said that the appellant had threatened to cut her with a knife; had stood on her bottom when she and her sister had no clothes on; had stood on her bottom and that of H and weed on both girls; had stood on the bottoms of both girls when they were naked and had weed on both girls, after which she wiped the wee from herself and her sister; had hurt her bottom; had pressed on her body when naked (drawing a picture); and that the events had occurred when M was at the home of S.
33․On 19 September 2012, R’s genital area was examined by Dr Bragg, a medical practitioner with ACT Health at the Canberra Hospital in the Child at Risk Health Unit. She has a Master in Paediatrics and a Graduate Diploma in Infant Mental Health. She found no genital “trauma”. At a consultation with Dr Bragg, M was asked whether she had observed “sexualised play”. M said that she had not.
34․On 15 October 2012, police conducted an evidence-in-chief interview with H.
35․On 6 August 2013 (when she was six years and five months old), R gave pre-trial evidence before Burns J. His Honour determined that the evidence should be unsworn. R said that the appellant had pressed on her bum and stood on her, but that she could not recall him weeing on her.
36․At the trial, M’s evidence was given through an interpreter. The prosecution relied on R’s evidence-in-chief interview with police and her unsworn evidence in the pre-trial proceedings, the evidence of complaint to M and E, and tendency evidence.
37․The appellant gave evidence that the alleged conduct did not occur.
38․The defence asserted that R may have been deliberately lying. Alternatively, there was a risk that, in the context of the custody dispute, M had lied about R’s complaints and had deliberately manipulated R into repeating and adopting M’s version of what had occurred.
The evidence said to give rise to a doubt or question
20․The applicant provided, with his application, a report dated 31 July 2021 (the GD report) prepared by Professor Jane Goodman-Delahunty, who describes herself as a “Forensic and Legal Psychology Consultant”. She has extensive experience in research related to the psychology relevant to legal issues, including in relation to child sexual assault, the questioning of witnesses and human memory. Her training and experience is outlined in more detail at [2]-[12] of the GD report. So far as her experience with evidence of complainants in child sexual assault cases is concerned, her report records:
10․In 2015-2016, I was a chief investigator on 17 studies commissioned by the Australian Royal Commission into Institutional Responses to Child Sexual Abuse on the effectiveness of methods to elicit reliable evidence from complainants of child sexual assault. Research publications derived from this project are one source of my expertise on memories of child sexual assault.
11․For the Australian Royal Commission into Institutional Responses to Child Sexual Abuse, in 2016-2017, I led a systematic review of over 700 empirical research reports since 2008 on memories of child sexual assault. Our report and related publications, are a further source of my expertise on memories of child sexual assault.
(Footnotes omitted)
21․Professor Goodman-Delahunty’s report addresses general issues in relation to the factors that influence a child’s recollection of sexual assault and provides commentary upon the interviews with police, consultation with a doctor and the pre-recorded evidence given by the child, R, in the present case.
22․So far as general issues with children’s recollections of sexual assault are concerned, the applicant’s written submissions summarise the issues as follows:
24․Professor Goodman-Delahunty makes the following relevant observations about factors that tend to influence children’s memory of child sexual assault:
a. Children aged five to six years are developing the capacity to discriminate real, experienced events from imagined events while children over six years of age can do this reliably (GD report at [37]);
b. Pre-schoolers (including a five year old) may have more trouble than older children in distinguishing between what they know due to their personal experience from what they have been told by others, such as a parent, and children aged two to six years (in the pre-operational stage of cognitive development) may claim to have personal knowledge of events that were suggested to them (GD report at [38]);
c. Children’s reasoning at two to six years is “syncretic” (based solely on what is observed) and they cannot reason beyond what is observable or make deductions or generalisations (GD report at [40]);
d. Sexual behaviours in children are common (GD report at [41]-[44]) including in non‑abused children aged two to six years (GD report at [44]);
e. Generally, the expressive language or productive vocabulary of children aged between five and ten years is likely to exceed their comprehension of the words used such that children can produce language without understanding what those terms mean, especially regarding sexual terminology (GD report at [46]);
f. Most children between four and thirteen years are uncertain about the exact meanings of terms used for various body parts, especially sex organs (GD report at [47]) and clarification questions historically asked by interviewers in this regard were overwhelmingly specific, not open-ended, thus risking error in children’s responses (GD report at [50]);
g. The most important issue in cases of child sexual abuse allegations in terms of reliability of complaint is whether a young child is exposed to suggestive influences before the first interview that is the basis for the charge (GD report at [55]);
h. It is often a sign of coaching by an authoritative adult when language is used by a child complainant in recounting alleged abuse containing wording or phrases that are repeated (GD report at [55]). Even well intentioned adults who lack special training to ask developmentally appropriate non-leading questions are more likely to ask leading recognition questions thus increasing the likelihood of eliciting and endorsing erroneous information (GD report at [57], see also [59]-[61] regarding the influence of unconscious bias);
i. People are notoriously poor at verbatim recall of conversations such that parents’ reports of questions they asked their children and of the answers given by their children are rarely accurately described (GD report at [62]);
j. There is a concern about young children who are readily susceptible when questioned by their mothers, who may misunderstand their children’s communications and mistrust their former spouses, resulting in false allegations of abuse (GD report at [65]);
k. Young children tend to comply with coaching to tell lies (GD report at [70]);
l. When allegations of child sexual abuse are made in the context of a family dispute regarding access or custody the rate of false reports is 12 percent (GD report at [71]).
25.Professor Goodman-Delahunty observes that the potential for “negative external contextual influences” by the complainant’s mother on the reliability of the complainant’s memory was documented by Dr Judith Bragg, Helen Willetts and Dr Anthony Milch (GD report at [72]), as follows:
a. Dr Bragg interviewed the complainant’s mother and examined her daughters in April 2012 and November 2013 and was not persuaded that the abuse allegations were based in fact (GD report at [73]);
b. Family Court expert Helen Willetts raised alarm about the detrimental influence of the complainant’s mother on the complainant’s relationship with her father and observed that the complainant’s behaviour showed a secure relationship with her father [that] is inconsistent with the alleged abuse (GD report at [74(a)]);
c. Similarly Dr Anthony Milch observed the “strong influence” of the complainant’s mother due to her controlling manner, and observed positive and appropriate social engagement of the applicant with the complainant (GD report at [74(b) and (c)]).
26.Professor Goodman-Delahunty goes on to examine the influence of interviewing techniques on the reliability of children’s memory, explaining that misreporting of events can arise due to the nature of the questions asked (GD report at [75]). In this regard Professor Goodman-Delahunty observes:
a. The likelihood of memory contamination due to well-intentioned but risky questioning depends on a number of factors (GD report at [76]);
b. Repeating the same question often prompts children to change their answer (GD report at [77]);
c. Misreporting increases with certain types of retrieval cues, when people focus on the meaning of experience (for example in counselling) and over time (GD report at [78]);
d. Direct questions about alleged abusive conduct are suggestive and should be avoided (GD report at [81]);
e. Questions that include information that was not generated by the child are suggestive and risky as they increase the likelihood that the child will falsely affirm the adult presumptions (GD report at [82]).
Observations of the first interview with police on 2 April 2012
27.Professor Goodman-Delahunty reviewed the first interview of the complainant on 2 April 2012, conducted by Detective Leesa Alexander in the presence of six adults (not including her mother but including a Sichuanese interpreter) (GD report at [88]). No support person was permitted when under the Regulations for Interviewing Minors, there should have been one. This issue was not raised at trial. Professor Goodman‑Delahunty observed the following issues arising from this interview that had the potential to affect the reliability of the complainant’s account:
a. During this interview the complainant did not engage or respond verbally when asked questions (GD report at [94]). In response to this, and the language barrier which was described by Detective Alexander as “formidable”, Detective Alexander resorted to leading questions and other suggestive strategies including positive reinforcement and using drawings (GD report at [95]);
b. Officer Tonge’s handwritten notes recording what was said during the interview included the words “Mum said” appearing to indicate that the complainant’s report was influenced by what her mother told her (GD report at [98]);
c. The interview included the leading question, “Last week did you tell mummy you saw your sister touch daddy’s wee part?” which is a risky question because it includes temporal information not within the capacity of the complainant to understand (GD report at [99(a)]), contained complex content (GD report at [99(b)] and contained factual assumptions not volunteered in the interview by the complainant (GD report at [99(c)]);
d. The reliance on felt cut-out dolls increased the risk of error (GD report at [100]‑[105]).
28.Professor Goodman-Delahunty also noted that in her opinion the absence of any disclosure in April 2012 by the complainant that the applicant had stood naked and urinated on her crotch was noteworthy given the allegedly recent experience would be unique or out of the ordinary (GD report at [108]). No external precipitants or memory cues were reported in this matter to account for the additional disclosures by the complainant in September 2012 (GD report at [111]).
Observations of the second interview on 13 September 2012
29.The complainant was interviewed again by police on 13 September 2012, again without a support person present, when under the Regulations for Interviewing Minors, there should have been one. This issue was not raised at trial. This interview was the complainant’s evidence-in-chief at trial.
30.Professor Goodman-Delahunty observed that there were several sources of communication difficulties in this interview: the complainant’s young age, unfamiliarity with the interview task, sexual concepts and vocabulary, and the language barrier (GD report at [113]).
31.Professor Goodman-Delahunty also observed a number of departures from what is now regarded as best practice in interviewing a young child, including numerous leading and repeated questions (GD report at [118]) with limited use of open-ended questions (GD report at [115]). Further there was extensive and ongoing use of suggestive positive reinforcement strategies such as “good girl” and “very clever” (GD report at [116]) including with respect to the complainant’s drawing of the event making up count 3 when the applicant “wee’d on [her]” (GD report at [117]).
32.In Professor Goodman-Delahunty’s opinion there were several specific features in the complainant’s response to interview questions that give rise to concerns that her answers were not spontaneously generated from her episodic event memory but were rehearsed (GD report at [119]), namely:
a. The complainant’s use of the phrase “Oh, I know”… as if suddenly recalling what she had been instructed to report (GD report at [120]-[121], [124]);
b. The complainant’s use of the phrase “another question is”… as if she had been coached to respond to a series of questions, noting it would be unusual for a child to conceptualise past events as a series of questions (GD report at [121]);
c. The complainant’s reference to the consequences of her disclosures including gaol where a young child is unlikely to be familiar with adult societal concepts such as gaol or legal violations (GD report at [122]-[123]);
d. The complainant’s reference to having finished her disclosures … (GD report at [125]-[126]) indicating an understanding by the complainant that she was to report a specific set of information in the interview (GD report at [126]); and
e. The complainant’s inability to answer other open ended questions about the disclosures once she had “finished”, indicating that she appeared to have exhausted her repertoire of rehearsed information rather than exhausted her episodic memory (GD report at [126]).
33.Between the police interviews and the complainant’s pre-recorded evidence, Professor Goodman-Delahunty noted the following events of significance:
a. Between April and November 2012 the complainant participated in weekly counselling sessions which may have induced false memories (GD report at [135]‑[136]); and
b. In May 2013 Dr Antony Milch … interviewed the applicant and his wife and the two children and observed the complainant and her sister on 21 May 2013 when he noted that both girls repeated statements that he had heard from their mother the previous day (GD report at [137]) and that the complainant’s description of events appeared to be rehearsed (GD report at [139]) including a drawing that she did of her father weeing on her and her sister (GD report at [141]-[142]). He also noted that while both girls stated that their father had hurt them they were unable to explain how (GD report at [140]).
Pre-recorded evidence
34․On 6 August 2013 the complainant gave evidence via AVL attended by an interpreter. Professor Goodman-Delahunty observed the following matters about her evidence:
a. Several leading questions were used (GD report at [144]);
b. The complainant was asked questions about when the reported events happened and she said in every case that they occurred when she was asleep, tending to indicate that the complainant was not accessing independent episodic memories of the events (GD report at [145]);
c. The complainant’s evidence that she did not remember her father weeing on her is consistent with it not happening as children’s memories of experiences of physical or sexual abuse are typically quite enduring (GD report at [146]);
d. When the complainant was asked questions relating to the influence of her mother she responded with “I don’t know” and did not deny it (GD report at [147]).
(Footnotes omitted)
23․The conclusion reached by Professor Goodman-Delahunty is as follows:
149.Taking into account the foregoing circumstances and the research published since 2013 on suggestibility, the unreliability of children’s drawings, and use of dolls in police interviews, it is likely that what [R] reported to the ACT Police in her record of interview in September 2012 and in court was a false autobiographical memory of her father urinating on her and her sister. The likelihood of a false autobiographical memory is strong because [R’s] memory of this alleged event appeared to be generated by a combination of external factors, and lacked features associated with self-generated episodic free recall. Notably, the verbal details provided by [R] of [GW] urinating did not match what was depicted in either of the two drawings by [R] of this alleged event. Neither drawing depicted the specific conduct for which [GW] was convicted, namely urinating on [R] and/or [H’s] crotch. Moreover, the details depicted in the first drawing differed from those in the second drawing.
150.Two primary sources of external influences on the memory reports of [R] were identified. First, [R] appears to have been subjected to contaminating information from her mother prior to her police interviews. This conclusion is consistent with assessments of three other independent professionals who examined and interviewed [R] at the time of the events in issue, namely the medical practitioner Dr Judith Bragg, the Family Court expert Dr Antony Milch, and the independent Family Court expert, Helen Willetts. All three professionals viewed the precipitating event as a custodial dispute following the separation of [R] and [H’s] parents. That context was seen to motivate allegations by the mother of abusive behaviour by the father so that the mother could obtain custody of her daughters, despite independent observations by Helen Willetts and Dr Milch of a positive and secure relationship between the girls and their father. Second, in the police interviews, [R] was subjected to inappropriate questioning strategies that departed from best practice. Use of inappropriate strategies reinforced the contaminating information to which [R] was exposed. Risk-prone strategies used in the interviews that increased the unreliability of the elicited information were suggestive questions, positive reinforcement, visual media such as felt dolls, and directions to [R] to make drawings of the alleged abusive events. The drawing made by [R] on 21 May 2013 that was first provided to [GW’s] legal counsel in November 2016, after the conclusion of his criminal trial in 2014, supported this conclusion because of its facially disparate content in comparison with the first drawing of this alleged event, tending to indicate that the drawing was not reflective of an episodic memory of a personally experienced abusive event, but of a memory of information about an abusive event that was gained indirectly and was rehearsed. This conclusion is consistent with the content of [R’s] memory yield on this topic, which was shallow, brief, fixed, and self-contradictory. These are features more typical of false than genuine memories.
151.In sum, the controlling, suggestive influences of [the mother] plus the risk-prone police questioning of [R] are likely to have contaminated the young child’s memory reports, producing unreliable accounts of sexual abuse.
Applicant’s submissions
24․The applicant submitted that the evidence of Professor Goodman-Delahunty gives rise to a doubt or question about the reliability of the complainant’s account, which formed the basis of the conviction on count 3.
25․The applicant’s submissions accurately identified the relevant law and the procedural history of the proceedings. They set out the summary of the Crown case referred to above and the evidence-in-chief given by R in her interview on 13 September 2012. The submissions then turned to what is described as “new evidence”. When introducing the GD report, the applicant’s submissions said:
22․While Dr Bragg gave evidence at the applicant’s trial that children are susceptible to manipulation or coaching by those in a position of power such as parents … there was very limited evidence at the trial, or indeed available more broadly at the time, regarding the reliability of children’s memories of sexual assault.
26․The applicant’s submissions then summarised the GD report both in relation to general factors that influence children’s memories of sexual assault and the specific commentaries upon the manner in which evidence was obtained from R in the present case. They recorded the conclusion from the GD report that it was likely that the complainant’s report and evidence was based on “a false autobiographical memory of her father urinating on her”.
27․When addressing the requirement of s 422(1)(c), the applicant’s submission was:
The doubt or question could not have been properly addressed in the applicant’s trial because of the relatively limited nature of research into the reliability of children’s reports of child sexual abuse in 2012 and 2013 and the unavailability of any evidence equivalent to the GD report;
28․In relation to the interests of justice (s 422(1)(g)), the applicant pointed to the unusual circumstances of the particular case, the evidence of coaching being a matter of concern to the administration of justice and the relative narrowness of the proposed inquiry, and submitted that the principle of finality should not be decisive in this case.
Submissions of the Director of Public Prosecutions
29․The Director contended that an application for an inquiry was required to be commenced by Originating Application and that, because of the absence of any originating process, there was no valid application before the court to enliven its jurisdiction. This was submitted to be because the default provisions in Div 2.2 of the Court Procedures Rules 2006 (ACT) (Rules) applied.
30․The Director submitted that certain proceedings may be taken to be started by Originating Application pursuant to r 36 where some other form of originating process is required or allowed under a Territory law. Because Pt 20 of the Crimes Act does not provide for such an originating process, the letter from O’Sullivan Legal dated 19 April 2023 cannot be taken to be an Originating Application. Further, it would be inappropriate to grant leave for the proceedings to be commenced by an oral Originating Application in accordance with r 37 for three reasons, which are developed in further detail in the Director’s submissions.
31․First, the Director submitted that the ordering of an inquiry would constitute significant relief, involving an inquiry conducted by a judicial officer, the preparation of a report and the consideration of that report by the Full Court of the Supreme Court to determine the consequences for the conviction to which the inquiry relates. Because of the significance of the relief sought, the court and the Director ought to “have the benefit of understanding the metes and bounds of the application with certainty”.
32․Second, the submissions sought to contrast the “broad and unconfined” nature of the order sought by the applicant with his submission that the inquiry would be “relatively narrow” in scope. The submissions pointed to the exceptional nature of a post‑conviction inquiry as articulated in the relevant Explanatory Memorandum and in Eastman v Besanko [2010] ACTCA 15; 244 FLR 262 at [76]. The Director’s submissions then pointed to the difficulties that arose in relation to the second Eastman post-conviction inquiry by reason of the failure to specify the matters in respect of which the inquiry was to be conducted, which were explored in Director of Public Prosecutions (ACT) v Martin [2014] ACTSC 104; 9 ACTLR 1.
33․The submissions then analysed the GD report so as to identify 16 different grounds for the order sought relating to general factors impacting on child memory of sexual assault, general factors impacting on the reliability of such a witness’ account of sexual assault and factors impacting on reliability because of questioning techniques. There were also said to be a variety of other opinions about these factors expressed in the GD report and the Director submitted that it was unclear as to which of them were relied upon as a ground for the application. The application was also said to be unclear as to whether it applied to the complainant’s evidence alone or extended to all complaint evidence.
34․Finally, the Director submitted that the application is unclear because it fails to distinguish between questions arising:
(a)where there have been improvements in the field of knowledge since the trial; or
(b)where there has been an authoritative discrediting of old practices since the applicant’s trial.
35․All of these matters were said to make it important for the applicant to clearly identify the orders sought and the grounds for doing so in an originating process. The Director submitted that, in the absence of such a document, the application was embarrassing and the court should not exercise any discretionary power to permit proceedings to be commenced.
36․Third, the Director submitted that the uncertainty of the application creates issues of procedural fairness because the Director would be unable to meet the claims which may ultimately adversely affect the interests of his office. For that reason, the court would not dispense with the rules requiring the proceedings to be commenced by an Originating Application.
37․The Director therefore submitted that any action taken in relation to the application would be ultra vires. No orders should be made permitting reliance upon the application because of its inherent uncertainties, the significance of the relief sought and the requirement of procedural fairness.
38․In the event that the court did not accept that primary position, the Director made submissions directed to the 16 grounds that were identified earlier in the submissions. In summary, so far as the matters in the paragraphs of s 422(1) are concerned, the Director’s submissions were as follows:
(a)It is not possible to form a conclusive view on whether or not the criterion in paragraph (a) is satisfied because it is unclear precisely what “doubt or question” is relied upon by the applicant.
(b)To the extent that the “doubt or question” relates to the complainant’s evidence or to complaint evidence, the Director conceded that it related to evidence admitted in the relevant proceeding and hence that the criterion in paragraph (b) is met.
(c)To the extent that the “doubt or question” is the unreliability of the complainant’s evidence for the reasons outlined in the GD report or the applicant’s submissions, the applicant is unable to satisfy the court that the doubt or question could not have been properly addressed in a relevant proceeding and therefore the criterion in paragraph (c) is not satisfied.
(d)No submission was made in relation to paragraph (d), but the position is likely to be the same as in relation to paragraph (a).
(e)To the extent that the “doubt or question” relates to the complainant’s evidence or complaint evidence, the criterion in paragraph (e) is satisfied because the doubt or question cannot now be properly addressed in an appeal against conviction.
(f)The criterion in paragraph (f) would be satisfied because there has not previously been an application for an inquiry in relation to the complainant’s evidence or complaint evidence.
(g)The court cannot be satisfied that it is in the interests of justice for the doubt or question to be considered by an inquiry and hence the criterion in paragraph (g) is not satisfied.
39․The Director made additional submissions in relation to paragraphs (c) and (g).
40․In relation to paragraph (c), the Director’s submissions set out an extract from the Court of Appeal’s decision articulating the applicant’s theory of the case, which was based upon the proposition that R may have been deliberately lying as a result of being manipulated by her mother into repeating and adopting her mother’s version of events: GW 2015 COA at [38]. The submissions then set out the applicant’s submission as to whether or not the doubt or question could have been addressed at the trial or on appeal:
Obviously, the GD Report was not available at the applicant’s trial in 2014. However, as its observations and conclusions are substantially based on research conducted since 2014 and consequent developments in forensic psychology’s understanding of children’s memories of child sexual abuse, it is not evidence that could have been obtained at the time. Professor Goodman-Delahunty explains in her report that in the past seven to eight years extensive research was conducted on the reliability of children’s memory of child sexual abuse (GD report at [19]). The extent to which research on the reliability of children’s report of child sexual abuse has developed since 2014 is demonstrated by the citations in her report, 71% of which are sources published from 2014 to present (GD report at [17]). Particularly, research has been conducted since 2014 regarding young children’s susceptibility to memory errors as a result of external influences, including coaching by a parent (GD report at [21]), and the reliability of drawings produced by young children during interview (GD report at [21]). Further three core texts on questioning children to elicit reliable information have been published since 2013 (GD report at [22]).
41․The Director contended that these submissions should not be accepted for seven reasons.
42․First, the unavailability of an expert report commissioned after the relevant proceedings cannot be a basis upon which the ground in paragraph (c) is made out. What is relevant to the question of unavailability is the content of any such report.
43․Second, the amount of research conducted in the field since 2014 and the number of texts published is irrelevant. What is critical is the substantive result of the research. Unless the research is productive of an authoritative discrediting of previous beliefs or scientific practices or methods in the relevant field or a new belief or scientific practice or method relevant to the evidence admitted in the proceedings, it ought not be sufficient to engage paragraph (c). The applicant's submissions do not include a clear articulation of precisely what has changed in the field since the relevant proceedings, and when that change occurred. The GD report does not identify when specific beliefs, practices or methods were first accepted nor when any of those practices or methods were authoritatively discredited. The GD report does not identify any specific belief, practice or method that has come into existence or been discredited only since the relevant trial.
44․Third, the conversion of citations into percentages as a method for demonstrating that the report is based on recent knowledge is simplistic and misleading. It says nothing about whether any other source could have been used to support the proposition, nor about when the proposition first came to be known and accepted in the field. The GD report gives as an example the proposition that “leading or suggestive questions are recognition‑based questions containing information that prompts children to select an option rather than generate an answer from their own knowledge”. The Director submitted that the vices of leading questions are known to the law and there was ample knowledge at the time of trial to allow that issue to be properly ventilated. The submissions also refer to the evidence given by Dr Bragg at trial concerning techniques of questioning.
45․Fourth, many of the propositions in the GD report are supported by publications identified in the report that were available at the time of trial. The Director’s submissions identify various propositions advanced in the report and their supporting citations which predate 2014.
46․Fifth, many of the propositions in the GD report were in fact addressed at the trial. Reference was made to issues arising from the proposition that R was coached by her mother to lie or say things she did not understand. Reference was made to the cross‑examination of Dr Bragg and the reliance upon those answers by counsel for the applicant in his summing up to the jury. The Director submitted that the fact that a preferred defence expert witness has now been identified and that the same points might be put more forcefully does not deprive the original trial of its character as a proceeding in which the relevant matters were properly addressed.
47․Sixth, reliance cannot be placed upon the ultimate conclusion in the GD report that “it is likely that” R’s complaint to police and evidence in the court proceedings were the product of a false memory because the manner in which the author expresses her conclusion makes it impossible to interrogate how much of that opinion is based on knowledge that could not have been available at the time of the relevant trial.
48․Seventh, the Director submitted that the applicant has not systematically identified the doubts or questions, examined how those doubts or questions were raised in the proceedings and compared that with how the issues could be dealt with differently now.
49․In his submissions directed to paragraph (g), the Director submitted that there were three reasons why it was not in the interests of justice for an inquiry to be ordered.
50․First, where the field of knowledge relates to human memory and the reliability of child sexual assault complaints, continual improvement may be expected. It is not a case where there is clear new knowledge or discrediting of techniques utilised in evidence in the relevant proceeding. In those circumstances, the ramifications of ordering an inquiry are not self-contained and the consequences would not be limited to specific matters.
51․Second, the availability of evidence at the time of the trial weighs against an order for an inquiry.
52․Third, the interests of justice are served by respecting the finality of the court process other than in exceptional circumstances. To order an inquiry permitting an attack on the whole of the complainant’s evidence where that was properly canvassed at trial would be to order an appeal by another name.
Applicant’s submissions in reply
53․The applicant provided submissions in reply to those of the Director. These addressed the jurisdictional point and conceded that it may be correct that r 34 of the Court Procedures Rules applies. However, the applicant submitted that it would now be unfair for the court to refuse the application on the basis that it was not made in the correct form. The applicant submitted that the doubt or question asserted was clear and understood by the Director. He submitted that it would be appropriate to dispense with the requirement that the application be made in accordance with Form 2.7, the form that is required for an Originating Application. Alternatively, the applicant indicated that he would resubmit an application in whatever form was determined necessary by the court.
54․The written submissions also provided further particulars of his application and later provided a bundle of additional documents relevant to the application.
55․The applicant responded to the Director’s submission that further clarity was required about the order sought by formulating the order sought as follows:
That there be an inquiry into the conviction on 8 April 2014 of [GW] for an act of indecency against R (Count 3), limited to the question of whether the complainant’s report and evidence was a false autobiographical memory of her father urinating or ejaculating on her.
56․The submissions summarised the basis upon which it was said that the requirements in the paragraphs of s 422(1) were satisfied.
57․The submissions recapitulated the relevant chronology of the evidence and summarised the points made in the GD report. The submissions included a specific response to the Director’s submissions made in relation to ss 422(1)(c) and (g).
58․In relation to paragraph (c), the submissions accepted that the reliability of the complainant’s account was raised at the applicant’s trial, including some of the issues referred to in the GD report. However the submissions continued:
Critically, it was not until [the] GD report, drawing upon research published after 2013, that evidence has emerged giving rise to the reasonable possibility (or likelihood) that the complainant’s account was a false autobiographical memory.
59․Even if that issue could have been raised at the trial, the applicant submitted that it could not have been “properly” addressed at the trial because “the GD report was not available” and “the breadth and depth of the research into children’s memories now available exceeds that which was known in 2013/2014”.
60․The applicant pointed to the fact that Professor Goodman-Delahunty was asked to advise, in particular, on research published since 2014 and that her conclusion was stated to be based on “research published since 2013”. The submissions referred to the fact that 70 percent of the citations in the report were published after 2013 and submitted that it is clear “that there have been considerable advances in the breadth and depth of psychological scientific research in relation to false memories since 2013”. The applicant submitted that the fact that the developments have been “incremental and cannot be neatly isolated” does not prevent a conclusion that the doubt or question could not have been properly addressed in the applicant’s trial. He submitted that this requirement is not only directed to “break-through” discoveries.
61․In relation to paragraph (g), the applicant submitted that, although finality militates against granting the application, there should be no concern that the granting of the application would impact upon the court’s consideration of other matters and that consideration of the same issues in other cases would, in any event, be in the interests of justice. The applicant submitted that, in the circumstances of this case, there is a “real concern” that an innocent man has been convicted and that this concern indicated that it was in the interests of justice that the doubt or question be considered at an inquiry.
The doubt or question
62․The doubt or question raised by the applicant is that identified in his submissions by reference to the GD report. What is contended is that Professor Goodman-Delahunty’s report raises a question or doubt about the applicant’s guilt in relation to count 3 because the complainant’s account of count 3 is likely to be unreliable as a false autobiographical memory.
63․The submissions made on behalf of the Director identified 16 propositions advanced in the GD report about the reliability of children’s evidence and submitted that each of these was a separate and distinct doubt or question in relation to which the application is advanced. They are set out in the Director’s submissions as follows:
General factors impacting on child memory of sexual assault are that:
a. age affects capacity to discriminate between real experienced, events from imagined ones;
b. age affects capacity to discriminate between events experienced personally and those suggested to a child;
c. age affects capacity to reason beyond what is observable;
d. exposure to suggestive influences prior to the first interview may influence a child’s account.
General factors impacting on reliability of a child witness’ account of sexual assault are that:
e. productive vocabulary may exceed a child’s comprehension of the meaning of terms used;
f. clarification questions about sex organs risk error in children describing various body parts;
g. sexual behaviour[s] in children are common;
h. repeated phrasing in a child’s complaint is often a sign of coaching by an authoritative adult;
i. people are notoriously bad [at] verbatim recall so complaint evidence may be unreliable;
j. false allegations of abuse may occur where mothers pressure or misunderstand their child and distrust their spouse;
k. young children tend to comply with coaching to tell lies;
l. the rate of false allegations of abuse in the context of family disputes is 12 per cent.
Factors impacting on reliability because of questioning techniques are:
m. repeating the same question often prompts children to change their answer;
n. misreporting increases with certain types of retrieval cues, including counselling;
o. direct questions about alleged abuse are suggestive;
p. leading questions are risky as they may lead to false affirmation of the suggested proposition.
(Footnotes omitted)
64․For the purposes of this application, I treat the doubt or question advanced by the applicant to be that which is set out in the applicant’s written submissions, namely, a doubt or question going to the ultimate finding of guilt based upon the opinion expressed in the GD report that the complainant’s account about count 3 is likely to be a false autobiographical memory.
Jurisdiction
65․The application with which I am dealing arises from a letter dated 19 April 2023 addressed to the ACT Supreme Court, the substance of which is in the following terms:
Application for Inquiry into Criminal Conviction
We are instructed to act on behalf of the Applicant, [GW].
[GW] was convicted of an act of indecency on 8 April 2014, following the conclusion of the proceedings [SCC] 55 of 2013. [GW] contends that there is a real doubt or question about his guilt is raised [sic] by the Report of Professor Jane Goodman-Delahunty dated 31 July 2021. [GW] seeks that there be an inquiry into his conviction pursuant to s 424(1) of the Crimes Act 1900 (ACT).
To this end, we enclose:
1.Submissions in support of this application for inquiry into conviction pursuant to s 424(1) of the Crimes Act 1900 (ACT); and,
2.The Report of Professor Jane Goodman-Delahunty dated 31 July 2021.
If you have any queries, please contact this office on (XX) XXXX XXXX.
66․As summarised above, the Director contends that the letter is insufficient to enliven the court’s power to make an order for an inquiry and, as a consequence, any such order would be ultra vires and involve jurisdictional error.
67․As a result of the submissions made by the Director, the following information was provided by the Senior Deputy Registrar and then disclosed to the parties
(a)On 13 March 2023, the solicitor for the applicant submitted an application in proceeding, using Form 6.2.
(b)On 14 April 2023, the Supreme Court Registry phoned O’Sullivan Legal, the legal representatives for the applicant. Registry queried whether the legal representatives had considered whether an application in proceeding was the appropriate form for the action proposed. Registry raised that s 424(1) of the Crimes Act required an application and not an application in proceeding, that it provided that the relevant action is not a “judicial proceeding” and that the form of an application in proceeding outlined in r 6007 of the Court Procedures Rules did not appear to be apt for the nature of the action sought to be brought. Registry indicated that there was no specific form for an application under s 424(1) of the Crimes Act. Registry advised that the applications made by Mr Eastman were made by letter to the court. Registry asked the legal representatives to give the form of the application further consideration. The legal representatives indicated that they would provide a further application, likely by letter and not in court form. Registry indicated that it would retain the application in proceeding but not process it and would wait until the further form was provided.
(c)On 19 April 2023, the solicitor for the applicant provided a letter to the court, attaching submissions in support of the application and a report of Professor Jane Goodman‑Delahunty, a professor of Forensic and Legal Psychology, dated 31 July 2021.
68․Following the disclosure of this information, the Director, by email dated 1 February 2024, indicated that he did not wish to provide any further written submissions. The applicant then provided submissions in reply which are summarised above.
69․Section 424(4) of the Crimes Act provides that: “Proceedings on an application are not judicial proceedings”.
70․Rule 4 of the Court Procedures Rules provides, relevantly:
4 Application of rules
(1)Unless a territory law otherwise provides, these rules apply to all proceedings in the Supreme Court and Magistrates Court.
Note A territory law includes these rules (see Legislation Act, s 98)
…
71․Rule 22 of the Court Procedures Rules provides:
22 Application—ch 2
(1)This chapter applies to every proceeding in the Supreme Court or Magistrates Court to which these rules apply.
Note 1Rule 4 (Application of rules) deals with the proceedings to which these rules apply.
Note 2This chapter has been disapplied (with exceptions) in relation to family and personal violence proceedings (see r 3802) and workers compensation proceedings (see r 3903).
Note 3The Magistrates Court includes the Childrens Court (see Magistrates Court Act 1930, s 287).
(2)However, this chapter applies to a criminal proceeding, forensic proceeding or appellate proceeding only as far as a territory law provides that it applies.
Note 1Criminal proceeding and appellate proceeding are defined in the dictionary.
Note 2 Forensic proceeding is defined in rule 4800.
Note 3Ch 4 deals with criminal and forensic proceedings and ch 5 deals with appellate proceedings.
Note 4A territory law includes these rules or a provision of these rules (see Legislation Act, s 98 and s 97 (1), def ACT law).
(3)Also, this chapter does not apply to another proceeding as far as—
(a)this chapter provides that it does not apply to the proceeding; or
(b)chapter 3 (Particular civil proceedings) provides that this chapter does not apply to the proceeding or otherwise makes provision for the proceeding inconsistent with this chapter; or
(c)another territory law (including another provision of these rules) provides that this chapter does not apply to the proceeding.
Note Ch 6 has provisions applying to all proceedings (see r 6000 (Application—ch 6).
72․“Criminal proceeding” is defined in the Dictionary to the Rules as follows:
criminal proceeding means a proceeding against a person for an offence (whether summary or indictable); and
(a)includes—
(i) a committal proceeding; and
(ii) a proceeding in relation to bail; and
(iii) a proceeding in relation to sentence; but
(b)does not include—
(i) an appellate proceeding; or
(ii) for division 4.3.2 (Supreme Court criminal proceedings—representation)—an application in relation to bail.
73․“Appellate proceeding” is defined in the Dictionary to the Rules as follows:
appellate proceeding means a proceeding to which chapter 5 applies.
74․“Proceeding” is defined in the Dictionary to the Legislation Act 2001 (ACT) as follows:
proceeding means a legal or other action or proceeding.
75․The power to order an inquiry under s 424 is given to the “Supreme Court”. That means the Supreme Court of the Australian Capital Territory: Legislation Act, Dictionary Pt 1 (definition of “Supreme Court”). Proceedings on an application are expressly stated in s 424(4) to be “not judicial proceedings”. Rule 4 provides that the rules apply to all proceedings in the Supreme Court unless a Territory law provides otherwise. There is no provision in a Territory law (including the Rules themselves) that excludes applications under s 424 from the scope of the Rules. Chapter 2 applies to all proceedings but does not apply to “criminal proceedings” or “appellate proceedings”. An application under s 424 is not within the definition of criminal proceedings. Further, it is not an appellate proceeding because no provision in Ch 5 of the Rules applies to it.
76․Therefore, the proceedings are within the scope of Ch 2 of the Rules. As a consequence, the proceedings need to be commenced by one of the originating processes referred to in r 31 or, if the proceedings are already on foot, by an application in proceeding, under Pt 6.2.
77․In my view, an application must be made by one of the originating processes referred to in r 31 and not pursuant to an application in proceeding under Pt 6.2. That is because any proceeding arising from an application under s 424 is not a judicial proceeding. Therefore, even though it might arise out of the finalisation of the underlying criminal proceedings, unlike those proceedings, it is not a judicial proceeding. I do not consider that it is possible that a single proceeding can transform itself, for the purposes of the s 424 application, from a judicial proceeding into a non‑judicial proceeding. Whatever the effect of s 424(4) is, it must include that the application is of a different nature to the underlying criminal judicial proceedings and therefore must be commenced by a new originating process.
78․In the present case, the proceedings were attempted to be commenced by an application in proceeding and, following advice from the Registry, sought to be commenced by letter. Rule 33 provides that a proceeding must be started by Originating Claim if a Territory law requires the proceeding to be started by Originating Claim and must be started in that way unless a Territory law requires or allows proceedings to be started by Originating Application. Rule 34(2) provides that a proceeding must be started by Originating Application if a Territory law requires or allows a person to apply to the court for an order or another kind of relief and the law does not state the kind of originating process to be used. Those are the circumstances which exist in the present case.
79․In my view, in the circumstances of the present case it is appropriate to dispense, pursuant to r 6 of the Rules, with the requirements of r 34(2) and permit the proceedings to be commenced by the letter that was sent. This is because the letter fulfils the function of describing the nature of the application, the provision relied upon and the factual basis for the application. I do not accept the Director’s submission that there is any relevant imprecision in the letter or its supporting documents that would render it unfair or inappropriate to allow it to enliven the jurisdiction of the court. As a matter of substance, the commencement by letter has allowed a procedurally fair process to be engaged in and I do not consider that there is any utility in now requiring a further document to be filed repeating the same information that has already been put before the court.
80․For those reasons, I will order that pursuant to r 6 of the Court Procedures Rules 2006 (ACT) (Rules), the requirements of r 34(2) of the Rules are dispensed with and the letter dated 19 April 2023 is taken for the purposes of the Rules to be an Originating Application.
81․That order is sufficient to deal with the threshold jurisdictional issue.
82․Neither party contended that it was necessary to conduct an oral hearing for the purposes of disposing of the application. Both parties filed written submissions. Because of the detailed written submissions that have been filed, I do not consider that procedural fairness to the Director requires any additional particularisation of the application. Having addressed the jurisdictional issue raised by the Director, it is therefore possible to address the substance of the applicant’s contentions.
Section 422: what needs to be addressed?
83․Each of the requirements in s 422(1) must be satisfied before there is power to order an inquiry into a conviction under Pt 20. Therefore, if any one of the requirements in paragraphs (a)-(g) of s 422(1) is not satisfied, then there is no power to order an inquiry.
84․The Director did not make a concluded submission in relation to paragraphs (a) and (d) of s 422(1), which logically should be dealt with together. The Director accepted that, if the relevant doubt or question is that identified by the applicant and relates to the complainant’s evidence or to complaint evidence, then paragraphs (b), (e) and (f) would be satisfied.
85․The Director contended that the requirements of paragraphs (c) and (g) were not satisfied.
86․Assuming that I concluded that there was a doubt or question as to whether the complainant’s report and evidence were the products of a false autobiographical memory of her father urinating or ejaculating on her, then I would not conclude that “the doubt or question could not have been properly addressed in a relevant proceeding”. As a result, the requirement in s 422(1)(c) would not be satisfied.
87․Because each of the requirements in s 422(1) must be satisfied to empower the court to order an inquiry, the failure to satisfy the requirement in paragraph (c) is fatal to the application. Therefore, it is only necessary to explain my reasons for concluding that the requirement in paragraph (c) is not satisfied.
Section 422(1)(c): the doubt or question could not have been properly addressed in a relevant proceeding
88․The issue arising pursuant to s 422(1)(c) is dispositive of the present application. The material relied upon by the applicant does not establish that the possibility that the complainant’s account about count 3 was unreliable because it was a false autobiographical memory was a matter that could not have been properly addressed in the applicant’s trial or on appeal.
General propositions
89․Section 422(1)(c) exists in the context of a criminal process which requires parties to be responsible for their decisions at trial and on appeal and places significant weight upon the principle of finality.
90․In that context, the fact that a particular defendant did not at trial or on appeal have a particular report that was subsequently obtained does not, of itself, provide a foundation for a conclusion that the issue raised by that report could not have properly been addressed in a relevant proceeding. Section 422(1)(c) is not concerned with whether or not the issue in that report could have been raised earlier – logically, if the report did not exist at the relevant time, it could not. Rather, it is concerned with whether the substantive issue raised by that report could have been properly addressed in the earlier proceedings.
91․Therefore, the fact that the GD report had not been obtained in 2013 or 2014 is of little relevance. The more important point is whether steps could have been taken in 2013 or 2014 to address the issues now sought to be agitated.
92․In a case such as the present, where the applicant contends that advancements in science have been made since the trial, it is necessary to establish that those advances are significant enough that it can be said that at the earlier time the issue could not have been “properly” addressed.
93․In areas of scientific evidence there will often, even usually, be increases in knowledge over time. The mere fact of an increase in knowledge of a particular area of scientific understanding will not be sufficient to establish that, at the earlier time, a particular contention based upon scientific knowledge could not have been properly addressed in earlier court proceedings unless it:
(a)involves or allows some contradiction of an earlier state of knowledge or of evidence based upon that state of knowledge; or
(b)involves such an advance in the state of knowledge that a conclusion can be reached that the earlier state of knowledge did not allow the issue to be “properly” addressed in the practical circumstances of a criminal trial.
94․The example in s 422 is an example of the latter, namely, an advance in knowledge which is sufficient to conclude that the issue had not been “properly” addressed at the earlier trial. It contemplates the development of a new DNA testing technique after all proceedings had been finalised and appeal periods lapsed. In the circumstances posited in the example, there is a new state of knowledge (the new DNA testing technique) which indicates that the issue had not been, from a current perspective, addressed properly.
95․The purpose of s 422(1)(c) is to limit the circumstances in which an inquiry is ordered to those in which there is something new that could not have been adequately (“properly”) dealt with at trial or in an appeal. The use of the word “properly” inevitably involves an exercise of judgment by the decision-maker. In a case in which incremental advances in scientific knowledge are advanced as providing the foundation for the doubt or question, a comparison between the state of scientific knowledge at the time of the trial and the time of the application will be significant in determining whether the subject matter of that knowledge could have been dealt with “properly” in the earlier proceedings.
The present case – absence of evidence of earlier state of knowledge
96․Notwithstanding the submissions recorded at [22] and [26] above about the “limited nature of research” available at the time of the trial, the applicant has failed to establish a benchmark of the earlier state of psychological knowledge about questioning techniques, children’s memory or the potential for contamination. He has therefore failed to provide the evidentiary foundation from which it might be possible to establish that:
(a)the state of knowledge at the time of the trial has been contradicted by subsequent psychological knowledge; or
(b)there have been such advances in knowledge,
so that a conclusion can be reached that the issue could not have been properly addressed at trial.
97․The submissions of the applicant did not seek to identify any contradiction of an earlier state of scientific knowledge. Rather, the submissions were based upon increases in knowledge that were “incremental” and “cannot be neatly isolated”. Notwithstanding this submission, the material provided with the application was insufficient to demonstrate the extent of scientific knowledge in 2013 or 2014 so as to permit a conclusion that it had advanced in a way that meant that s 422(1)(c) was satisfied.
98․First, there is no evidence from the applicant or the solicitor who acted for the applicant at the time of the trial or the appeal that would support a finding that expert evidence addressing the matters in the GD report was not available.
99․Second, the evidence of Professor Goodman-Delahunty in the GD report itself does not establish that the state of knowledge of questioning techniques, children’s memory and the potential for contamination was such that the issues raised in the GD report could not have been properly addressed at the trial or on appeal. While the request for the report and the report itself are carefully phrased so as to emphasise the significance of research undertaken since 2013, the report does not establish the baseline state of knowledge as at the date of the trial or appeal and hence does not provide a foundation for the submission that the issues raised in the GD report could not have been “properly” addressed at the trial or on appeal.
100․The request for the expert report asked Professor Goodman-Delahunty to advise about “[p]sychological scientific research, in particular research published since 2014, that bears on the likelihood that the allegations in the complainant’s reports were contaminated by external factors”: GD report at [15]. Her ultimate conclusion is said to be based on “research published since 2013”: GD report at [149]. The submissions placed reliance upon the fact that about 70 percent of the citations in the report postdate 2013, something referred to in the GD report itself at [17].
101․That the request focused on psychological scientific research published since 2014 or that the professor’s conclusions are based, in part, upon research published since 2013 does not establish that the issues raised in the GD report could not have been properly addressed at the trial or on appeal. It does not demonstrate that the state of psychological knowledge about questioning techniques, children’s memory and the potential for contamination was so materially different in 2013 that the issues now sought to be raised could not have been properly addressed at that earlier date. Insofar as the applicant conceded that it was open to address some of the issues raised in the GD report at trial and submitted that he was not able to “properly” do so, the evidence did not establish why that was the case. It did not establish any particular inadequacy in the state of knowledge that would have precluded someone with appropriate qualifications from engaging in the same exercise as engaged in by Professor Goodman-Delahunty.
102․The fact that Professor Goodman-Delahunty has placed reliance upon research conducted since 2013 and the quantification of the date of citations undertaken in the applicant’s submissions are unreliable means of addressing whether or not the issue could properly have been addressed in 2013 or 2014. Numbers of citations of particular dates in a particular report is not an appropriate means of assessing the state of psychological knowledge at an earlier date. The citations included will obviously be responsive to the specific request made of the expert and the dates on which the cited articles were published provide no probative evidence of the state of knowledge as at 2013/2014, nor evidence of any differences between that state of knowledge and the state of knowledge at the time of preparation of the report.
103․To the very limited extent to which it may be appropriate to have regard to the date and subject matters of the articles cited in the GD report, those citations do not support the proposition that the issues about memory, questioning techniques or the potential to inappropriately influence the evidence of a child have been subject to such changes or increases in knowledge as to indicate that the issue could not have been properly dealt with at the trial in 2014.
104․Third, apart from the evidence of Professor Goodman-Delahunty, there was no evidence from an expert in the field who identified that the state of knowledge at the date of the trial or of the appeal was different in a way which meant that the issues raised in the GD report could not have been properly raised at the trial.
The present case – the issues were in fact addressed
105․The fact that the issues were addressed at trial, albeit not by expert evidence of the sort now advanced, undermines the contention that the issues raised in the GD report could not have been properly addressed at trial. The fact that many of the issues raised in the GD report were raised at trial supports a conclusion that the applicant has not established that they could not have been properly addressed. This is clear upon a review of the treatment of these issues at the trial.
106․The issues of contamination of the evidence of R and the complaint evidence from her mother were addressed without the applicant himself calling an expert witness. This was done principally through the cross-examination of R, cross‑examination of Dr Bragg, and through submissions to the jury. In this way, the issues about children’s memory, the potential for questioning to elicit inaccurate evidence from children and the potential for contamination of R’s evidence by what she was told by her mother were all addressed at trial. The applicant’s decision at trial to not call an expert witness does not establish that the issues could not have been properly addressed. Rather, it reflects a forensic decision made by the applicant during the course of the trial.
R
107․R was asked by counsel for the applicant at trial whether or not her evidence about being hit by the applicant with a stick was a “pretend story”.
108․She was asked whether her evidence about the applicant wanting to cut her with a knife was a “made up story”.
109․She was asked about whether or not her evidence that the applicant had pushed her under the bed was a “made up story”.
110․She was asked whether somebody had said her daddy was not nice and then specifically asked whether her mother had told her that.
111․She was asked about whether her evidence about the applicant weeing on her was a “made up story” and whether someone had told her that the applicant had weed on her.
112․She was asked about whether her mother had told her about “walking funny” or about putting glass in her mouth or about doing a wee on her.
113․She was asked whether her mother got angry when she saw the applicant and whether her mother said she was not allowed to speak to the applicant.
Dr Judith Bragg
114․A letter from Dr Judtih Bragg which was referred to in the Director’s submissions, and which I infer was contained in the prosecution brief, included reference to a 2011 publication in the Journal of Child Sexual Abuse entitled “Examination Issues and Techniques – Conducting the Medical History”. This included specific reference to the need to minimise leading questions and to not suggest to the child an anticipated or preferred response.
115․In evidence-in-chief, Dr Bragg gave evidence about her interactions with R, her mother and her sister on 24 April 2012, 19 September 2012 and 12 November 2012. She was also asked more general questions about how children might describe an event that they have not encountered before, how they may disclose bits of information about sexual abuse over time and about the sexual understanding and behaviour of children between the ages of three and six years old. This more general opinion evidence was admissible under s 108C of the Evidence Act 2011 (ACT) and was adduced without objection.
116․In cross-examination, Dr Bragg was asked specific questions about what occurred at the consultations on 24 April 2012, 19 September 2012 and 12 November 2012. She was also cross-examined on issues relating to child complainants to provide a foundation for the submission that the answers that R had given to police, in the evidence-in-chief interview and in court, were unreliable. Her evidence was as follows:
Doctor, do you agree that for young children their dependency means that the parent is in a position of power over them?---Young children are reliant on their parents for love, protection, all forms of nurture, physical and emotional, and that places the parent in a position of power over the child, because the child is highly motivated to stay in a good relationship with that parent.
Do you agree that for a child the threat of rejection or losing the affection and love of a parent is more terrifying than a threat of violence?---Certainly both those things are of concern to a child.
And that children are socialised to listen to and do what their parents tell them?---That’s correct.
Do you agree also that a child might adopt what that child has been told as the child’s own description of things?---Children can take on things that other people have said, and that will often - well, the way you’ll identify that is that they’ll use language that’s necessarily typical of their own language.
Or perhaps talk about concepts that it’s clear that they don’t quite get?---That may occur.
And the effect on a child is a child might adopt what they’ve been told as their own view of what’s occurred?---That can happen.
Or a child might simply repeat what a child has been told?---That can happen.
So when an adult in a trusted position tells a child something, that child might accept that that, in fact, is what has occurred?---That can happen, yes.
Or the child might simply repeat what the child has been told?---That can happen.
Can I ask you something about the process of questioning a child?---Do you mean as in a clinical situation or are you talking about forensic interviewing of children?
I’m talking in a forensic context so in a legal context?---So I don’t do that myself. You mean like giving a police statement?
I want to ask you something about - did you watch the police DVD with [R]?---I did.
Do you agree with the idea that open-ended questions are a good way of trying to elicit material from a child?---There are two schools of thought. Open-ended questions mean that you’re not putting any ideas in the child’s head. However, young children find open‑ended questions very difficult to answer so they’re much more likely to be able to focus on a more specific question. For example, the training that’s undertaken by the police here is, “Tell me everything about” which is quite overwhelming for young children but if you say, “Who was in the room at the time?”, a child might answer that quite easily. So the technique that’s used is a good technique for a child who is a bit older but it’s difficult for very young children to engage in that process.
Okay and so when the police asked questions, did you observe the police sometimes to say, you know, “What happened after that?”---Yes.
Or “Tell me everything about that”?---Yes.
And that conforms with the school of thought that indicates that form of questioning doesn’t infect the child’s own view about what happened?---That’s the rationale behind it.
And they ask questions like, “Tell me everything about when daddy took off your clothes”?‑‑‑That’s correct so they listen to anything the child says and then come back to it and enlarge trying to use the language that was originally used by the child.
And similarly, “Tell me about the wee”?---Yes.
That’s both open and focused, isn’t it?---Well, the - that wouldn’t be a question that you would ask unless the child had used the word “wee”.
“Wee”, of course not, of course not, but that’s the sort of (indistinct) - - -?---That’s more focused yes.
Or “Tell me everything about the time that daddy wee-ed on you”?---Yes, that’s a more focused question.
But again, that comes after the child has talked about wee?---That’s correct.
And the idea there is to elicit information from the child?---To enlarge their narrative to get them to put more detail into what they’ve said.
And if they don’t put more detail on that, that raises a question, doesn’t it?---Well, it doesn’t answer questions. It leaves you not really knowing exactly what that means in a child’s mind. You can’t necessarily draw inferences one way or the other.
Yes and the police ask questions like, “Tell me how he did that”?---That’s a difficult question for a child to answer, yes.
And then they asked, “How did he stand on you?” That would be a relevant question to ask, wouldn’t it?---Yes. When these children were - well, the interview that you’re referring to was actually conducted in English and even though there was an interpreter available, it was clear that - - -
Sorry, the question was the question was fairly directed about how did he stand on you. That was a sensible question to ask in the context, wasn’t it?---Yes.
And “What happened when daddy stand on your bottom”? That too is a directed question, isn’t it?---Yes.
But a directed question is permissible once you’ve got the open answer?---Yes, following up on what the child said.
117․There is no evidence to indicate whether this cross-examination was based upon expert material made available to counsel for the applicant at the trial or whether it was simply cross-examination based upon common knowledge of an experienced barrister.
Detective Senior Constable Leesa Alexander
118․Detective Senior Constable Leesa Alexander was the informant and had conducted the interviews with R on 2 April 2012 and 13 September 2012 and with R’s mother on 5 October 2012 and 16 October 2012. She was cross-examined about her training “to help [her] speak to a child in a way that didn’t corrupt that child’s evidence”, that would not introduce ideas to the child and so that the child might not adopt the police officer’s ideas as part of the child’s answer. She was asked about questioning using open questions and being careful not to lead the child so as to suggest an answer. She was then asked about the interview on 2 April 2012. The officer explained that, at one point, she was concerned that there were too many adults in the room and she asked most of them to leave. The officer explained how she had difficulty communicating with the child and, because there was a welfare issue as well as a forensic one, she made the decision to start asking R leading questions.
Submissions to the jury
119․The fundamental point made in the submissions to the jury by counsel for the applicant was that there was a grave risk of “corruption of the truth” by R’s mother and hence the charges could not be established beyond reasonable doubt. Counsel submitted that the jury should be concerned that whenever the mother’s position was threatened in Family Court proceedings, there was a defensive reaction of an allegation of sexual abuse. He submitted that there was a risk that the proceedings were being manipulated for another purpose by R’s mother. The potential for contamination of R’s evidence was elaborated upon by reference to the answers given by Dr Bragg and significant portions of Dr Bragg’s evidence set out above were quoted by counsel in his address to the jury. Counsel was clearly raising with the jury the possibility that R’s evidence was unreliable either because she was repeating the story that her mother had told her knowing it not to have occurred, or because she had adopted it as her own recollection of what occurred.
The present case – what else might have been done
120․The evidence of what occurred at trial is consistent with a forensic decision to raise the issues about the reliability of R and her mother by cross-examination of prosecution witnesses, rather than by adducing expert evidence from a witness giving evidence of the type now prepared by Professor Goodman-Delahunty. Had the accused considered that it was in his forensic interests to do so, he might have obtained a report from an expert which would have provided a foundation for more detailed cross-examination of Dr Bragg. Dr Bragg routinely gives evidence pursuant to s 108C of the Evidence Act and did so in her evidence-in-chief. The cross-examination of Dr Bragg had the effect of adducing additional evidence, favourable to the applicant, pursuant to s 108C. A report such as the GD report could have provided additional material that would have informed counsel’s cross-examination of Dr Bragg.
121․Alternatively or additionally, the applicant could have called an expert witness himself to address, at least, the state of psychological knowledge about memory, children’s memory and the appropriateness of questioning techniques. Such evidence would have then informed the jury’s own assessment of the reliability of R’s evidence in the same manner that evidence routinely called by the prosecution pursuant to s 108C was sought to be used. Leave would have been necessary under s 108C(1)(c) but, having regard to the adducing of evidence from Dr Bragg (which appears to have been uncontroversial), it is likely that such leave would have been granted. It may have been much more difficult to obtain leave to adduce evidence equivalent to that in the GD report insofar as it expresses a definitive opinion about the reliability of evidence in this case: see, for example, Wotton v State of Queensland (No 4) [2015] FCA 1075; 333 ALR 466. However, to the extent that a specific opinion on the circumstances of the individual case would not have been admissible at trial in accordance with the rules of evidence, that does not demonstrate that the matters that led to that opinion could not have been “properly” dealt with.
122․In addition to the potential at the trial to have obtained expert evidence to inform cross‑examination, or that could be adduced from a witness called by the applicant, insofar as the GD report raises issues about the use of leading questions when R gave pre‑trial evidence, those issues could have been addressed at trial by objecting to the admissibility of R’s pre-trial evidence on the basis that it was contrary to s 37 of the Evidence Act. That does not appear to have occurred.
123․The GD report also refers to a report prepared for the Family Court by Dr Antony Milch. The applicant’s written submissions accept that the report of Dr Milch of May 2013, which was prepared for Family Court proceedings, was available to the applicant at trial. That report contained factual statements as to things that he was told by R and H when he separately interviewed them, which he concluded had a “choreographed and prepared quality” and led him to have concerns that the mother had coached the girls to make negative comments about their father. There may have been constraints on the use of this material arising from the fact that it was prepared for Family Court proceedings. However, at the very least, the existence of the report ensured that the applicant was on notice of the issues relating to potential contamination of R’s evidence and the potential for an appropriately qualified expert to provide evidence going to those issues.
124․Finally, some of the factual matters referred to by Professor Goodman‑Delahunty were matters known to the applicant which could have, subject to his counsel’s forensic decision-making, been deployed in the proceedings. One example of this is Officer Matthew Tonge’s notes of the interview on 2 April 2012, in which he recorded that R said “Mom said” during the interview, a matter identified in the GD report as being suggestive that R’s report was contaminated by what her mother had told her. This material would have been in the prosecution brief of evidence and hence available to be used at trial.
125․Another factual matter that might have been raised at trial is the fact that R had participated in regular counselling sessions between the interviews with police in April and September 2012 and R’s pre-recorded evidence in August 2013. Even if there were limits on what might be adduced about the content of these sessions, their existence was known and the significance of their occurrence might have been the subject of expert evidence.
The present case – the appeal
126․The appeal from the applicant’s conviction to the Court of Appeal was ultimately successful on two of seven grounds. These were the ground that the unsworn evidence of R should not have been admitted and the ground that the trial judge failed to properly direct the jury about the unsworn evidence. One of the grounds which was not upheld was that the verdict was unsafe and unsatisfactory having regard to all of the evidence. As part of this ground, the applicant raised many of the factual issues going to the now asserted unreliability of R’s evidence and the complaint evidence given by her mother. The manner in which this aspect of the appeal was argued demonstrates that the applicant relied upon many of the factual matters now the subject of the GD report. The applicant also relied upon the expert evidence adduced from Dr Bragg in cross-examination in a manner consistent with an understanding that expert evidence relevant to the credibility of a child complainant could be deployed by the applicant.
127․In order to demonstrate the range of matters relied upon by the applicant before the Court of Appeal, it is useful to set out the summary of the matters relied upon provided in the Court of Appeal’s judgment, GW COA 2015 at [41]:
(a)When R gave pre-trial evidence, she could not recall the appellant “weeing” on her, although she denied that she had invented that allegation when she spoke to the police.
(b)[R’s mother] had a motive to invent the allegations. Following an argument, the appellant had called the police and obtained a domestic violence order against [R’s mother], and then obtained an order that [R’s mother] understood prevented her from seeing the children for two months.
(c)When spoken to by police in April 2012 (soon after the alleged events), R made no complaint.
(d)There was a delay in R making a complaint, from April to September 2012.
(e)The making of the allegations that founded the charges coincided with the appellant seeking extended, unsupervised access in August/September 2012.
(f)The circumstances in which R made a complaint in September 2012 “were curious”. [R’s mother] told the refuge worker that R wanted to speak to the worker; R was forthcoming as soon as she spoke to the worker.
(g)M said that it was on 7 September 2012 when she saw H lying on top of R and realised that the behaviour was simulated sexual activity. However she had previously observed such behaviour on 25 April 2012, in June 2012 and on 19 August 2012. When speaking to Dr Bragg, on 19 September 2012 [R’s mother] reported that there had been no “sexualised play” by the complainants. … The simulated sexual activity was not reported to the psychiatrist until 12 November 2012. [R’s mother] explained that, when she spoke to Dr Bragg on 19 September 2012, she thought that “sexualised play” was a reference to sexualised play with dolls.
(h)[R’s mother] said that, in November 2012, R complained to her that the appellant had threatened her with broken glass and said that R should not tell [her mother] about his conduct. R did not make that allegation in the police interview and denied any threat with broken glass when she gave evidence.
(i)There was substantial discussion between R and [her mother] concerning the allegations.
(j)R’s account in relation to Count 3 suggested urination, not ejaculation. Urination is not inconsistent with [R’s mother] having manipulated R and R remaining ignorant of facts which would suggest ejaculation. Also consistent with manipulation was the “somewhat surprising lack of revulsion or emotional content in her response”.
(k)R’s account of the appellant standing naked on herself and H (Counts 5 and 6) was inconsistent with evidence from others that R and H were dancing at a folk dancing event on 1 April [2012] and had no apparent difficulty with movement. There was expert evidence that, if the appellant had jumped up and down with a foot on the genital areas of R and H, then they would have exhibited symptoms in the days following.
(l)[R’s mother] said that, on 6 September 2012, R said that “her bottom was hurting”. A medical examination on 19 September 2012 made no finding of genital or anal trauma.
(m)There was expert evidence that children listen to their parents, can adopt the version of another person and recall it as their own version of events.
(n)The appellant’s evidence denying the offences.
128․For present purposes, it is important to note the coincidence between the matters relied upon in the Court of Appeal proceedings and those identified in the GD report as influencing an assessment of R’s reliability, particularly the reliance upon expert evidence referred to at (m) above.
129․It is also clear that the applicant understood the significance of the expert evidence given by Dr Bragg. One of the grounds of appeal was that the trial judge had failed to put the defence case. The Court of Appeal recorded that “[o]ne matter about which the [applicant] made particular complaint was the failure to give any specific direction regarding the evidence of Dr Bragg to the effect that, as a parent, [R’s mother] was in a position to influence and manipulate R”: GW COA 2015 at [109]. The court noted that no redirection had been sought and that, in any event, as defence counsel had submitted in his closing argument to the jury, the fact that young children are reliant upon their parents who are in a position of power and influence is “pretty obvious” and “something that [the jury] would know for [itself]”. The significant point for present purposes is that the applicant was aware of the significance of expert evidence from Dr Bragg to support his contention that a doubt arose by reason of the potential for contamination of R’s evidence.
Conclusion
130․I am not satisfied that the doubt or question said by the applicant to be raised by the GD report, namely, whether there is a doubt about the applicant’s guilt in relation to count 3 because the complainant’s account of count 3 is likely to be unreliable as a false autobiographical memory, could not have been properly addressed in the proceedings before the jury or on an appeal. That is because I do not consider that any changes in psychological knowledge arising subsequent to the trial and appeal have been shown to be so significant that it could be said that the doubt or question could not have been properly addressed in one or other of those proceedings. It is also because the issues now sought to be raised were in fact raised in the proceedings through the cross-examination of lay and expert witnesses by counsel for the applicant, submissions were made to the jury arising from that cross-examination and there were other steps that could have been taken if the forensic choice to do so had been made by the applicant.
Result
131․Because, upon the assumption that a doubt or question as articulated by the applicant exists, the mandatory requirement of s 422(1)(c) is not established, it is not necessary to reach a final conclusion as to whether the other requirements of s 422(1) are satisfied.
132․The application for an order under s 424 of the Crimes Act must be refused. I will order that the application is dismissed.
Orders
133․The orders of the Court are:
1.Pursuant to r 6 of the Court Procedures Rules 2006 (ACT) (Rules) the requirements of r 34(2) of the Rules are dispensed with and the letter dated 19 April 2023 is taken for the purposes of the Rules to be an Originating Application.
2.The application arising by reason of order 1 is dismissed.
| I certify that the preceding one hundred and thirty‑three [133] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Justice Mossop. Associate: Date: 29 April 2024 |
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