Badem v The Queen
[2016] VSCA 200
•17 August 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0255
| NESIM BADEM (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | WARREN CJ, WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 July 2016 |
| DATE OF JUDGMENT: | 17 August 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 200 |
| JUDGMENT APPEALED FROM: | DPP v Badem (A Pseudonym) (Unreported, County Court of Victoria, Judge Carmody, 9 November 2015) |
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CRIMINAL LAW – Conviction – Application for leave to appeal – Applicant convicted of one charge of persistent sexual abuse of a child under the age of 16 – Whether verdict unreasonable or could not be supported having regard to the evidence – Whether verdict unsafe or unsatisfactory – Reasonably open to jury to have been satisfied beyond reasonable doubt of applicant’s guilt – Application for leave to appeal against conviction refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Doogue O’Brien George |
| For the Crown | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions. |
WARREN CJ
WEINBERG JA
PRIEST JA:
On 15 October 2015 the applicant, now aged 67, was found guilty of one charge of persistent sexual abuse of a child under the age of 16, an offence contrary to s 47A of the Crimes Act 1958. The victim of the offending was the applicant’s daughter.
Section 47A relevantly provides as follows:
(1)A person who persistently sexually abuses a child under the age of 16 is guilty of an indictable offence.
(2) To prove an offence under subsection (1) it is necessary to prove—
(a)that the accused during a particular period (while the child was under the age of 16) did an act in relation to the child which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B); and
(b)that an act which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B) took place between the accused and the child on at least two other occasions during that period.
(2A)It is not necessary that the alleged acts be of a similar nature or constitute an offence under the same provision.
(3)It is not necessary to prove an act referred to in subsection (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against subsection (1).
(4)A person who is guilty of an offence under subsection (1) is liable to level 2 imprisonment (25 years maximum).
The applicant was sentenced to seven years and six months’ imprisonment. A non-parole period of five years was fixed.
The applicant now seeks leave to appeal against conviction. He relies upon a single ground, namely that the verdict is unreasonable or cannot be supported having regard to the evidence. For the reasons that follow we have concluded that leave to appeal should be refused.
Circumstances surrounding the offending.
The prosecution alleged 15 separate acts of sexual abuse, extending over a period of five years. The offending was said to have commenced in 2006 when the victim was aged 7, and continued until 2011 when she was aged 12.
The first act of sexual abuse upon which the prosecution relied was said to have taken place soon after the complainant’s seventh birthday. She was in the applicant’s bedroom, at the time, lying on his bed. His wife was in the garden, but within plain view of the room. On this occasion, the applicant was said to have touched the complainant in the region of her vagina.
Thereafter, it was contended, the applicant regularly abused his daughter. From about 2007 to 2009, he frequently masturbated in her presence. Among the acts alleged against him were ejaculating upon her, making her rub his penis, forcing her to watch pornographic material, and stroking her vagina with his fingers. During that period, he would occasionally sleep on a mattress on the floor in her bedroom. The complainant described these incidents as ‘camping’.
From 2009, through until 2011, the applicant slept almost every night in the complainant’s bedroom. During this period he continued to offend against her. Once again, it was said that he had masturbated in front of her. However, he went further and also at times introduced his penis into her mouth, and his tongue into her vagina. On at least one occasion, he was said to have attempted unsuccessfully to introduce his penis into her anus. In relation to that last matter, his daughter attended her general practitioner, complaining of anal pain. However, she made no mention at that stage of the applicant having offended against her.
According to the complainant, the applicant’s offending extended beyond the family home. On one occasion, he made his daughter rub his penis whilst driving a van to a farm in Woodend. Her younger brother was said to be asleep in the van at the time.
On another occasion, the applicant was said by the complainant to have touched her vagina whilst she was under a blanket, seated with him on a couch at the applicant’s mother’s home in Footscray. His mother was sitting in front of him.
Returning to the time when the applicant and his daughter visited the farm at Woodend, she said that they both slept in a caravan. She claimed that, on that occasion, he inserted his penis into her mouth. She said that this was the only time that he had ever used protection, describing the condom as ‘banana flavoured’. She said that he had asked her to taste it.
In 2011, the applicant moved out of his daughter’s bedroom, and into one that had been vacated by his youngest son. As indicated, the complainant was then aged 12.
This was not quite the end of the applicant’s sexual abuse. In early 2013 he was said to have placed his hand down his daughter’s pants, and touched her buttocks. This time she pulled away and angrily rebuked him. That was the last time that he was said to have engaged in any such abuse.
On 28 August 2013, the complainant told her mother, for the first time, that the applicant had been molesting her for a number of years. A week or so later, on 5 September 2013, her mother took her to the Footscray Police Station. The complainant provided police with a statement. At their request she then participated in what was described as a ‘pretext call’, which was recorded. During the course of that call she asked the applicant repeatedly why he had abused her. He strongly denied ever having done so.
Later that day, the applicant was arrested and interviewed by police. In a lengthy record of interview, he denied ever having offended against his daughter. He suggested that, in conjunction with her mother, she had concocted the allegations in order to get him ‘out of the house’. The applicant was released pending summons. For reasons that are not immediately apparent, he was not ultimately charged until December 2014.
The complainant’s allegations in detail.
The complainant’s initial statement to police on 5 September 2013 was in the form of a VARE (Visual and Audio Recorded Evidence). The recording, as is customary in such cases, was played to the jury and stood as her evidence in chief. It was a lengthy recording, extending over three hours, and consisted of 717 questions and answers.
The complainant was aged 14 at the time of the VARE. In accordance with what seems to be common practice, she was asked early on to give as complete an account as she could of all that the applicant had done to her. She did so.
Her answer to question 12 was lengthy and discursive. However, because it embodied almost all of her allegations it is appropriate to set it out in full.
O.K. He used to touch my vagina and rub me every single night for four years, ever since I was in grade 2, so that was when I was seven and it went on till I was in grade 6 so I — I was 12, I’m pretty sure, yeah, 12. He used to make me touch his penis and rub it and used to tell my mum that he'd take me out camping or something like that and then he’d do things to me every night and he would lick my vagina and he would play with it and he used to tell me to do the same to him all the time. And he used to tell me, “If you tell anyone I will hate you for the rest of your life”, and all that sort of stuff and so I didn't tell anyone, and I kept it in. I remember the first day when it happened, we were laying on my mum’s bed while she was outside gardening and he just touched me. I didn't know what was going on then ‘cause I was only seven and it turned into something he did every night. It was, like, sort of a habit for him. He used to hurt me all the time, he used to press his penis on my bum hole, sort of thing, and he used to hurt me a lot. It used to bleed and it still does now and it really hurts to wipe or to wash it in the shower or anything. One day I went to the doctors for it in 2011, I think, about — I was really — I was in a lot of pain. They checked and they gave me some sort of cream for it and I couldn’t tell them, like, why it happened. No-one has known for the whole time it happened except for my dad. He used to take me out to the farm and he used to do stuff to me in the caravan. He, one day, brought condoms to the farm and he told me that the condoms were flavoured and that it tasted really nice and he put it on and he said, “Try it”, and he put — he forced me to let him put his penis in my mouth and he used to make me suck it. He used to try to put his penis in my vagina and I used to tell him — he used to say to me, “If I ever hurt you tell me and I’ll stop”, and I used to tell him, “It’s hurting me”, and he wouldn’t stop. He would — he would touch me, he would touch my breasts every night and he would lick them and he would — he would — he would make me watch porn with him every night. On his laptop, on my mum’s laptop, on a portable DVD player. He used to get DVDs from a petrol station and he used to make me play them for him and he used to make me watch ‘em every single night. One day he took me out fishing and on the way there he made me play the DVDs for him. Sometimes if we’d go camping I wouldn’t want to go alone so I’d get my brother, [E], to come. He would leave early in the morning sometimes and my brother would get really tired and he’d fall asleep in the car right next to me so it would be my brother, me and then my dad and he’d be driving and while my brother was asleep he’d get me to touch him more and all that while my brother was right there. Like, he wouldn’t be embarrassed to say, “Do this for me.” Whenever I didn’t he’d get upset and I believe that he never used to sleep — he never used to let me sleep at a friend’s house or go to a friend’s house and he’d get upset because I wouldn’t be there to pleasure him or to satisfy him. He used to tell me that I love you for what you’re doing because my mum would refuse to do it for him ‘cause he’s the — after it every night and mum would get sick of it and she’d say no and he used to tell me, “I love you so much for doing this because no-one else does this for me.” He used to tell me — he used to say, you know, “Never tell anyone that I’m doing this ‘cause I could get sent to gaol and I could — and you’ll never see me again”, and he used to scare me, like, he used to say, “I’ll hate you for the rest of your life if you tell anyone, so I never told anyone. …
Since he slept in my room for a couple of years now — well, he didn’t — he doesn’t any more. He moved out at the start of this year, I think, but he was sleeping in my room for two or three years and he claimed that my mother kicked him out of - because they used to sleep together and he claimed that my mother kicked him out of her room but really what happened is they had an argument and he moved himself out of the room. So he used to sleep in my room and every night he used to wake me up in the morning or during the night and he used to tell me to do stuff to him. He used to say, “I can’t sleep, … . Help me get to sleep,” and he used to make me touch him and everything like that and he used to touch me a lot. He used to — I used to wake up in the morning with no pants on, no underwear on, sometimes no tops on. He used to —he just used to say like, “I’m so happy you’re doing this,” you know, “You make me feel so good,” and I used to hate it. He’s always say, like, “If I’m hurting you, tell me,” and I’d tell him and he wouldn’t stop. I don’t know. He used to just — he used to take me to the farm, my nan’s house, he used to do it in front of my nan under a blanket. We were sitting on the couch and he’d put a blanket over me and he’d do it in front of my nan while he was talking to my nan and my nan wouldn’t realise it. One day we went to the snow and on the way back in the car he made me touch him and he used to — he took me to my nan’s house and that’s one of the days when he really hurt me as well ‘cause he tried to put it in. It’s happened to multiple — the first day it happened was on my mum’s bed and he’s done it on my mum’s bed, my bed, his bed, the spare bed, my nan’s bed, basically all the couches in the house while my mum was home. She would have been in a different room and he used to turn the TV up so she wouldn’t hear anything if I was to say ow or stop or something. I don’t know what else. I can’t think of anything else at the moment.[2]
[2]Emphasis added.
Shortly thereafter, at question 26, the complainant said:
Q26O.K. Tell me more, you said that he didn't finger you or put his penis into your vagina. Tell me about the other things he did to you.
A He would lick my vagina, he would put his penis in my mouth, he would rub me and he used to tell me it was O.K. and that we’re only massaging each other but that I am not allowed to tell anyone ever. He would make me rub him obviously. He used to watch porn while he was doing it and he used to say, “Do what these people are doing.” He used to make me watch porn every night with him and not just one little video, multiple videos that went for, like, half an hour each one and I can remember everything and I’m, like — my life is just ruined ‘cause I can just remember everything that happened and everything he said to me. He used to say, “It’s O.K., it’s not bad,” and all this stuff and he used to grab my breasts and he used to pull them and lick them and — and he used to put — he used to try to push his penis in my bum and he used to hurt me a lot then. He used to make me bleed and it used to hurt till I’d wash and clean it. It still hurts now actually. And I was telling mum about it the other day, I said, after I’d told her about everything about last week, she said, “Yeah, I had this cream for you, that will help you.” I haven’t used it yet. But the other day — and then — but, yeah, he used to do everything you could imagine except for actually placing something in, but everything else he did to me, every single night, four years in a row, nonstop. And most mornings, sometimes during the day, but every single night.[3]
[3]Emphasis added.
Much later, at question 628, she gave the following answer, upon which counsel for the applicant placed considerable reliance before this Court:
Q 628 So did you tell your mum what had been happening?
A I told my mum everything basically, yeah, everything. What happened when it started, how long it went for. And I calculated it, apparently a thousand, 1460 nights in a row, I think.
Q 629 O.K.
A I think, I think.
Q 630 O.K.
A Yeah, I dunno.
Under cross-examination, during the course of a special hearing, it was put to the complainant that throughout the entire period of the alleged offending, her parents’ relationship had been dysfunctional. It was suggested that she had sided with her mother, and against her father. It was further suggested that when she spoke to police, during the VARE, her aim was to do whatever she could to get her father out of the house. It was put to her that she had fabricated the allegations of sexual abuse against her father because she saw a separation coming and wanted to remain in the family home, with her mother. She denied that suggestion.
For whatever reason, the complainant was not cross-examined as to the specific details of any of her individual complaints. It was not put to her that she had exaggerated any or all of her claims. It was not put to her that some of those claims were inherently improbable, and that she must, therefore, have fabricated them. Rather it was simply put to her, in the broadest possible terms, that her father, had never, at any stage, abused her.[4]
[4]Cross-examination of a child during the course of a special hearing is no doubt a fraught exercise, requiring considerable care and sensitivity. It appears to be common, in such cases, for defence counsel to avoid detailed and specific questions, but to meet their ‘puttage’ obligations under Browne v Dunn by general assertion.
The only other evidence of substance led by the Crown was that given by the complainant’s mother. She basically confirmed her daughter’s account as to her husband’s occupation of the complainant’s bedroom, and the various trips they had taken together. She also gave evidence of her daughter’s complaint to her in August 2013, and of her visit to her doctor, complaining of anal pain.
The applicant’s submissions.
Counsel for the applicant acknowledged that his client bore a heavy burden in seeking to have his conviction set aside as unsafe or unsatisfactory. He submitted, nonetheless, that this was a case which warranted the exercise of that power by this Court.
Counsel noted that the case against the applicant turned almost entirely upon the daughter’s credibility. There was no independent evidence in support of her account. He submitted that the complainant’s evidence was beset by a number of inherent improbabilities, rendering it so completely implausible that it would be dangerous to allow this conviction to stand.
Counsel first noted that throughout the entire period of the alleged offending, the applicant and his daughter had jointly engaged in a number of social activities, including some when they were alone together. By way of example, counsel noted that father and daughter had gone away, during the latter part of the period of the alleged offending on a two week cruise, where they had shared a cabin. They had also played tennis regularly, gone sailing, and spent time together, alone, both at the family home, and on weekends away.
Counsel, in his written submissions, drew attention to 17 quite specific features associated with the complainant’s evidence that, taken in combination, should have persuaded the jury that her account should be rejected. We will refer to these as ‘implausibility’ features. They were as follows:
1. The complainant’s claim, repeated on several occasions throughout the VARE, that the applicant had sexually abused her ‘every night’ between 2007 and 2011, culminating in her nomination of a figure of ‘1460 nights in a row’ (VARE at question 628).
2. The complainant’s claim that the applicant had attempted to penetrate her anally on more than 100 occasions (VARE at questions 118 to 119).
3. The complainant’s claim that she suffered ongoing and continuing pain to her anus long after the offending was said to have concluded.
4. The complainant’s claim that the applicant would regularly make her watch pornography, and that he would force her to engage in mutual masturbation, all of this taking place whilst other members of the family were at home.
5. The complainant’s claim that on one occasion the applicant watched pornography on a portable DVD player while driving, and forced the complainant to masturbate him at the same time (VARE questions 376 to 387).
6. The complainant’s claim that the applicant had touched her vagina, while she was covered with a blanket when the two of them were sitting adjacent to the applicant’s mother at her home.
7. The complainant’s claim that the applicant had touched her vagina whilst he was driving, and at a time when she and her brother were seated together on the front bench seat of his van.
8. The complainant’s claim that the applicant had abused her in a tent at Lake Eildon while her brother was sleeping next to her (VARE questions 445 to 457) and, on another occasion, when the whole family was in the tent (during cross-examination in the special hearing, transcript 139–140).
9. The complainant’s claim that the applicant had repeatedly abused her after he moved into her bedroom, and for the entire period that he shared that room with her. Her evidence was that her father did not finally move out of her room until 2013. However, at another point she said that the offending had ceased in 2011. It was submitted that the two statements could not be reconciled.
10. The complainant’s claim that she ‘used to wake up in the morning with no pants on, no underwear on, no tops on’.
11. The complainant’s claim that the applicant ‘had done it on my mum’s bed, my bed, his bed, the spare bed, my nan’s bed, basically all the couches in the house while my mom was home’.
12. The complainant’s claim that while she was lying down covered by a blanket, watching television in either her mother’s room, or her bedroom, the applicant would sometimes put his head under the blanket, grab her legs, pull them back and lick her vagina. He would even do this in the lounge room, while her mother was nearby in the kitchen (VARE at questions 44 and 45).
13. The complainant’s claim that the applicant used to force her to watch him in the shower, and that he would masturbate in front of her. He would also, while naked, undress her and lie on her, ‘humping her’, though not to the point of penetration (VARE at questions 32 and 33).
14. The complainant’s claim that her knowledge of condoms came from watching pornographic videos with her father (VARE at questions 49 and 57 to 62).
15. The complainant’s claim that the applicant became angry with her every time she decided to sleep in her mother’s room, rather than in her own bedroom (VARE at question 104).
16. The complainant’s claim that she was ‘scared to be alone with [the applicant]’ yet continued to have contact with him and to participate with him in social activities (VARE at question 116).
17. The complainant’s claim that the offending occurred, on a daily basis, over a four year period, between 2007 and 2011. Yet, she acknowledged, somewhat incongruously, so it was said, that he had only slept in her bedroom for a period of between one and two years, from 2009 onwards. The complainant’s mother gave evidence that the applicant had slept in his daughter’s bedroom for about 18 months (transcript 193).
In addition to these various ‘implausibility’ features, counsel submitted that there were other reasons for rejecting the jury’s verdict in this case. These included the fact that there was plainly a risk that the mother and daughter had jointly concocted the allegations against the applicant, in order to remove him from the scene. It was also noted, in that regard, that some eight days or so had elapsed between the first disclosure of sexual offending, and the visit to the police, ample time to make up a story.
Finally, counsel also relied upon several, less significant features of this case that were said to cast doubt upon the complainant’s evidence. These were all set out
in detail in the applicant’s written case. It is unnecessary to repeat them here.[5] Counsel properly accepted, during the course of oral argument, that they were of little significance, and did not advance his argument. Nonetheless, and for what they are worth, we have had regard to them.
[5]They included such matters as inconsistencies (of a minor nature) in the account given by the complainant, the fact that the applicant had no previous convictions, and there was evidence of prior good character, and the emphatic tone with which he rejected the allegations made against him in both the pretext call and the record of interview.
The respondent’s submissions.
The Crown acknowledged that the prosecution case rested almost entirely upon the complainant’s credibility. It was submitted, however, that the jury having had the considerable advantage of having seen and heard the complainant give her evidence, this Court should not lightly interfere with this verdict.
It was submitted, by way of overview, that the complainant’s account was apparently rational and coherent. It did not contain internal discrepancies of a kind that were sometimes encountered in cases such as this. Neither was her evidence tainted in any way, or otherwise lacking in probative force.
More specifically, it was submitted that there was nothing at all surprising about the complainant’s evidence that, to her mind, the applicant had abused her ‘every night’ over a period of some years. Statements of that kind should not be understood literally, but rather as conveying nothing more than that the offending had occurred on a regular basis, and frequently.
The complainant had been a very young child at the time of the alleged offending. She was still only 14 when she made her VARE. It would be easy to understand how repeated acts of abuse of the kind that she described may have seemed to her to have been occurring on what she characterised as a daily basis.
The same could be said of the complainant’s ‘throw-away’ line to the effect that her father had tried to penetrate her anally on more than 100 occasions. This was simply the language of a child caught up in an emotionally difficult situation, recounting to a stranger years of abuse by her father. At the very least, the jury would have been entitled to regard it as such.
With regard to the complainant’s evidence of ongoing pain, and bleeding to her anus, it was submitted that, notwithstanding her belief that there had never been any actual anal penetration, it did not render her evidence as a whole suspect, still less as incapable of belief. It was submitted that it could well be that she had suffered such pain, and bleeding, without that having anything at all to do with her father’s sexual abuse. Certainly, there was evidence from the complainant’s doctor that he had seen her on at least two occasions, and that she had complained to him of having these symptoms. To that extent at least there was some support for her account.
It was next submitted that there was nothing inherently improbable regarding the complainant’s evidence that her father had abused her at times when other family members were close by. Such conduct could simply be indicative of a brazen attitude on the part of an arrogant man, self-assured to the point of considering himself impregnable, so far as detection was concerned.
Insofar as the complainant gave evidence of trips that she had taken with her father, there was independent evidence confirming that they had gone away together on those trips. Whilst not in any sense corroborative, such evidence was said to marry with external reality. It was submitted that her account had none of the hallmarks of contrivance that might otherwise have been expected had she simply made up a series of allegations, entirely lacking in substance.
Finally, it was submitted the complainant had not been shaken in cross-examination. She had never once wavered in her evidence. The only inconsistencies that had emerged in her account related to minor matters of timing, which were only to be expected.
Although the applicant had vehemently denied the allegations against him in both the pretext call and the record of interview, it was submitted that the jury were well entitled to have rejected those denials, and to have been satisfied beyond reasonable doubt that the complainant was telling the truth.
Analysis and conclusion.
In M v The Queen,[6] Mason CJ, Deane and Toohey JJ said:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty...But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. [7]
[6](1994) 181 CLR 487.
[7]Ibid 493.
The same members of the Court went on to say:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[8]
[8]Ibid 494.
Finally, the Court said, in relation to the task to be performed by an intermediate appellate court when considering a ground of this nature, that:
the court must decide by making its own independent assessment of the evidence…and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”... But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”.[9]
[9]Ibid 492-3.
In Libke v The Queen,[10] Hayne J (with whom Gleeson CJ and Heydon J agreed) said the following, of a ground asserting that a conviction was ‘unsafe or unsatisfactory’:
It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.[11]
[10](2007) 230 CLR 559.
[11]Ibid 596–7 [113] (emphasis in original). See also R v Klamo (2008) 18 VR 644, 653–5; BCM v The Queen (2013) 303 ALR 387; Weston (a Pseudonym) v R (2015) VSCA 354, [4].
In R v Klamo,[12] Maxwell P summarised the effect of these two High Court decisions as follows: [13]
[12](2008) 18 VR 644.
[13]Ibid 653 [38].
The approach required of appellate courts in considering the “unsafe and unsatisfactory” ground involves the following steps:
1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
A guilty verdict can only be said to have been “reasonably open” to the jury if there was no aspect of the evidence which obliged — as distinct from entitled — the jury to come to a different conclusion.
In SKAv The Queen,[14] the High Court confirmed that for the New South Wales Court of Criminal Appeal to determine whether a conviction was unreasonable, or could not be supported having regard to the evidence, that Court was required to determine for itself whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the offender was guilty as charged.
[14](2011) 243 CLR 400.
In BCM v The Queen,[15] the High Court, citing SKA v The Queen, stated that in determining whether a guilty verdict was unreasonable, an appellate court was required to ‘disclose its assessment of the capacity of the evidence to support a verdict.’ This would not be satisfied by a mere indication that the jury was entitled to accept prosecution evidence.
[15](2013) 303 ALR 387.
It is clear from these statements of principle, and particularly that enunciated by Hayne J in Libke, that the applicant must overcome a significant hurdle if he is to persuade this Court to set aside this conviction as unsafe or unsatisfactory.
It soon became clear during the course of oral argument that, although counsel for the applicant relied upon the combination of all of the ‘implausibility’ features that were identified in his written case, by far the two most important of those features, and those that formed the very lynchpin of his argument, were features numbered one and two.
In our view, and for the reasons put forward by the Crown, neither of these two ‘implausibility’ features, whether considered individually, in combination with each other, or even in combination with all other identified ‘implausibility’ features, leads to the conclusion that the jury, acting reasonably, ‘must’ have rejected the complainant’s evidence.
It is true, as counsel for the applicant noted, that the complainant said on more than one occasion that her father had sexually assaulted her ‘every day’ for a period of four years. She even went on to calculate that period as being 1,460 days. It must be remembered, however, that this was an entirely unstructured, and somewhat rambling account given by a 14 year old girl, who was describing what may to her have seemed like ongoing, and never-ending, sexual abuse by her father. The jury, as a matter of common sense, would have been entitled to take what she said in that regard with a ‘grain of salt’. They could legitimately have understood her to be saying that her father had abused her so many times over a period of several years that it seemed to her to have occurred on a daily basis.
It should also be remembered that in her answers to questions 629 and 630 of the VARE the complainant seemed to have qualified, somewhat, her statement that her father had assaulted her ‘every day’ for four years.
We note, for the sake of completeness, that the complainant was not challenged in cross-examination regarding that particular assertion. Had she been pressed on that point, she might have explained, or perhaps qualified somewhat, her statement as to the daily occurrence of the offending.
The second ‘implausibility’ feature upon which counsel for the applicant placed heavy reliance was the complainant’s evidence regarding the ongoing anal pain that she claimed to have suffered. This was despite her insistence that her father had never actually penetrated her anally.
It must be said that the complainant’s evidence regarding this matter does give some cause for concern. If, as she maintained throughout, the applicant never at any stage achieved anal penetration, it is difficult to find a causal link between his actions, and the ongoing pain she claimed to have suffered.
There are, however, several possible explanations for what otherwise might be regarded as a significant incongruity. The evidence led at trial regarding this matter consisted of the complainant’s own account, her mother’s version of what her daughter had told her, and her visit to the doctor. There was also a statement read to the jury, made by that doctor, regarding the complainant’s treatment.
The statement in question was in the following terms
“I Dr Marouf,” that’s M-a-h-r-o-u-f Muhammed, M‑u-h-a-m-m-e-d, “was working as a GP at Scott Street Medical Centre in Melton when [the complainant] consulted me on 09/03/2011.” So that’s 9 March 2011. “Complaining of having noticed blood in the toilet twice after defecation the previous day with loose stools. She also complained of feeling a lump at anus, mild pain at defecation and mild abdominal pain which comes on and off. According to the progress notes there was no positive findings on examination. I have requested faeces M/C/S,” … “cryptosporidium/giardia and culture for salmonella shigella campylobacter.” … “to investigate her complains. When she returned on 18/09/2011,” that’s 18 September 2011, “to discuss results all her symptoms have resolved. Faeces M/C/S was negative for blood mucus, giardia,” …“cryptosporidium/bacteria,”…
During the course of oral submissions before this Court, Priest JA queried the relevance of this evidence at trial, having regard to the fact that it was not suggested by the complainant that there had ever been any anal penetration. Be that as it may, both sides were content to have the doctor’s evidence led at trial. No doubt, each saw some benefit from this evidence for their respective cases.
It may be that, from the defence perspective, the value of the doctor’s evidence lay in the supposed implausibility of the complainant’s claim to have had ongoing pain, extending over a lengthy period, with no medical or other explanation available to support that claim.
From the Crown’s point of view, the evidence at least showed that the complainant had raised with her mother the matter of anal pain, so much so that she had been taken to see a doctor about it. The evidence might therefore be thought in some limited way to have bolstered her credibility. At least, it could not be said that the complainant had recently fabricated her account of having suffered such pain in the past.
Whatever the explanation for the doctor’s evidence having been led, we are not persuaded that the complainant’s account of the anal pain and bleeding was of such a questionable character as to render her evidence as to her father’s abuse implausible. It was, of course, possible that, so far as she was concerned, she genuinely suffered pain of the kind described, albeit unconnected with any offending on his part.
As regards the remaining 15 or so ‘implausibility’ features relied upon to establish ‘inadequacies’ in the complainant’s evidence of the kind spoken of in M v The Queen, it is sufficient for us to say that a number of them simply do not suggest implausibility at all.
The fact that the applicant is said to have abused his daughter in locations and at times that would have made his conduct seem almost reckless does not, in our view, mean that her account should be rejected. There is a perfectly rational explanation for such behaviour. It may be that, as with other offenders in other cases, he engaged in such conduct because the risk of being seen heightened his sense of sexual gratification. Alternatively, his conduct may simply have been that of a brazen offender, supremely arrogant, and certain that he would never be held to account.
As part of our task in considering this sole ground of appeal we have considered the evidence as a whole. At the specific request of counsel for the applicant, we have listened carefully to the recording of the pretext call. We have also viewed substantial portions of the video recording of the applicant’s record of interview. We have taken his demeanour into account, including the forceful manner in which he denied the allegations made against him.
Nonetheless, having carried out our own independent assessment of the evidence, we consider that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. We ourselves do not entertain any such doubt.
It follows that leave to appeal should be refused.
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