Bradley Dickins v The Queen
[2019] VSCA 284
•5 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0195
| BRADLEY DICKINS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE, McLEISH and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 November 2019 |
| DATE OF JUDGMENT: | 5 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 284 First Revision: 5 December 2019 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1338 (Judge Mullaly) |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of one charge of committing an indecent act in the presence of a child under 16 years and one charge of sexual penetration of a child under 16 years – Whether verdicts unreasonable – Whether evidence of complainant reliable – Complainant with intellectual and speech impairments – Complainant susceptible to suggestion from adults – Significant inconsistencies and deficiencies in complainant’s recollection not attributable to complainant’s impairments – Real possibility complainant’s recollection was product of suggestion by trusted family member – Leave to appeal granted – Appeal allowed – Convictions on both charges set aside and substituted with verdicts of not guilty – Criminal Procedure Act 2009 s 276(1)(a) – R v Klamo (2008) 18 VR 644; R v Baden-Clay (2016) 258 CLR 308; Fennell v The Queen [2019] HCA 37 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M FitzGerald | Doogue & George Pty Ltd |
| For the Respondent | Mr J C J McWilliams | Solicitor for Public Prosecutions |
KAYE JA
McLEISH JA
ASHLEY JA:
The applicant was convicted, by the jury empanelled on his trial, of one charge of committing an indecent act in the presence of a child under 16 years (charge 1) and one charge of sexual penetration of a child under 16 years (charge 2). He was sentenced to a total effective sentence of 7 years and 9 months’ imprisonment, with a non-parole period of 5 years and 9 months. The applicant seeks leave to appeal the conviction on both charges on the ground that the verdicts are unsafe and unsatisfactory. He also seeks leave to appeal the sentences on the ground that the individual sentences and the non-parole period are manifestly excessive.
Background
The offences were alleged to have been committed on 31 July 2012, when the victim, JG, was ten years of age.[1] JG has suffered (and still suffers) from an intellectual disability and a language impairment, and at times he attended a special school. The charges were based on an interview conducted by the informant with JG by way of a VARE procedure. As will be explained later in the reasons, the account given by JG, in the VARE, was fragmented, not sequential, and, in parts, internally inconsistent.
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the use of initials in place of the names of the complainant and other witnesses.
The applicant was a close friend of JG’s parents. At the time of the offending the applicant was employed, on a part-time basis, inspecting and performing maintenance and repair works on children’s rides at various shopping centres in the Geelong area. For some years, when JG was between about seven and 13 years of age, JG would be brought to the applicant’s home to accompany him on the days when the applicant performed that work. As a result, JG spent a substantial amount of time in the applicant’s home during that period.
The prosecution alleged that, on the day on which the offence occurred, JG had visited the applicant’s home in the afternoon of 31 July 2012, which was a week day. In his evidence (given by way of the VARE procedure), JG stated that he remembered that date, as an ex-girlfriend had kissed him at school. At one point, in his evidence, JG stated that, when he was at the applicant’s house, the applicant showed him a condom, and put it on his penis (charge 1). The applicant told JG to introduce his penis into the applicant’s anus, but JG declined to do so. Instead, the applicant introduced his penis into JG’s anus (charge 2). In his evidence, JG stated that that was the first occasion on which he had been sexually penetrated by the applicant. He said, however, that subsequently it occurred on a large number of occasions over the following three years.
The first occasion on which JG disclosed the (alleged) offending was in a conversation with his uncle KG on 21 September 2015, the day of JG’s grandfather’s (KG’s father’s) funeral. On that occasion, JG disclosed the offending after KG confided to JG that he himself had been subjected to sexual misconduct by the applicant. In response to KG’s disclosure, JG stated that the applicant had engaged in that sexual misconduct with him too.
As a result, JG’s family arranged for him to attend at the police station with his father on the next day, 22 September 2015. On 28 October 2015, he made a police statement by way of the VARE procedure. An edited version of the VARE recording was played to the jury as his evidence-in-chief at the trial.
The applicant was arrested and interviewed on 4 December 2015. He gave a no comment interview when questioned about the allegations. The charges on the indictment were filed on 18 August 2016. A contested committal proceeding was held on 23 January 2017. A special hearing was held over two days on 28 and 29 June 2017, in which JG was cross-examined and re-examined. An edited recording of that hearing was played as part of his evidence at the trial, which was held in May 2018.
In addition to the evidence of JG, the prosecution called evidence from KG, as to disclosures made to him by JG, and the informant. In the course of her evidence, the informant read parts of the witness statements of the parents of JG.
Summary of evidence
The prosecution case depended on acceptance by the jury of the evidence of JG. Before that evidence was played to the jury, the judge, with the consent of the parties, told the jury that JG is a young adolescent who has an intellectual disability and learning difficulties, and that he attended a special school for part of his schooling. The judge said to the jury that JG’s disabilities would be ‘self-evident anyway’. In that respect, having had the opportunity to read JG’s evidence, and to watch and listen to the video recordings of the VARE process and the special hearing, that observation was well made out. The following summary of JG’s evidence does not reflect the language difficulties to which JG was subjected.
In the VARE, JG confirmed that he had learning issues at school and that he had a speech problem. He said that he had commenced to visit the premises of the applicant in 2010. He described the applicant as ‘dad’s mate’. He said that the applicant went to the supermarket to fix the rides there. In the years that followed, JG often visited the applicant at his home and they would sometimes ‘do the rides’ together. His parents would always leave him at the applicant’s home. In particular, he used to go there on Sundays. When he was at the applicant’s home, he would do ‘typing on the laptop’, and watch movies in the applicant’s lounge room.
JG said that when he was watching movies at the applicant’s home, the applicant would sometimes touch his leg while they were sitting on the couch. He would push the applicant’s hand away, and get something from the fridge, such as an icy pole or soft drink. On those occasions, the applicant would sit very close to him and hug him.
When asked (by the informant) whether he could remember an occasion when that happened, he said it occurred on 31 July 2012. He said it was his ‘special day’ because his ex-girlfriend at the school had kissed him on that day. He said on that day he went home from school and played, and then went to the applicant’s place, which he sometimes did on school days. His parents drove him there and they knocked on the door. The applicant answered the door ‘naked’ because he had just woken up, and the applicant said that he was having a shower. JG’s mother and father then left him at the applicant’s home. JG said that they ‘done the rides first’ and afterwards went back to the applicant’s house. When they were there, the applicant showed him a condom. JG then said (to the informant) ‘and just show and put it on … on my dick’. When asked by the informant what the applicant did, JG said ‘open it up … the paper thing … the wrapper, I think, and put it on his dick.’ When asked further questions, JG said that at that time he was in the spare bedroom playing on the laptop or drawing something. The applicant was then making coffee. The applicant came to the bedroom, referred to the condom, and said to JG ‘and don’t tell mum and dad nothing about it’. The applicant touched JG’s penis. When asked by the informant what next occurred, JG said ‘pull my pants down’. They went in the applicant’s bedroom and ‘something bad happened’ which he could not remember. He then said that the applicant got naked and told JG to get naked too. The applicant then went in the shower, and went in his room. JG was still playing on his laptop.
JG then said that they went underneath the doona and ‘something really bad happened’. The applicant told him to put his penis up the applicant’s anus. JG then said (in the VARE) ‘and, yeah, and that’s it’. He said what next happened was that his mother knocked on the door. The applicant told him to get dressed and not to tell anyone. JG got dressed and went outside where his mother was waiting.
The informant (in the VARE) then asked JG as to what happened when they were under the doona. JG said that the applicant told him to put his (JG’s) penis up his anus, but he did not do so. When asked (by the informant) what happened next, JG said ‘he done at me’. When asked what that meant, JG said ‘put his penis up my bum … I think’. JG then said to the applicant ‘stop’. However, the applicant did not stop. When JG’s mother knocked on the door, the applicant told him to get dressed. JG then went outside where his mother was waiting. He told his mother about the condom at his mother’s ‘old house’.
JG said that on the next occasion he saw the applicant, he (the applicant) ‘done it again’. JG told the applicant to stop, and the applicant responded ‘Its feel good’. When asked (by the informant) to tell about the next time it happened, JG responded: ‘Exactly the same time’. He then said (to the informant) ‘done it over and over and over again each time I always go there’. When asked on how many occasions it happened, JG responded ‘heaps’. He said it sometimes occurred in the lounge room. It occurred both in the applicant’s ‘old house’ and also in his ‘new house’.
JG then said that he had told KG, his uncle, about what had happened. On that occasion, KG and he went into his room and talked about it. KG said that ‘bad stuff had happened to him too about [the applicant]’, while he (KG) was living in a campervan with his partner. JG told KG that the applicant had ‘done bad stuff to me’. In the VARE, JG said that he had not told his parents about what the applicant had done to him, because he was a bit scared to do so, but that he trusted KG.
When asked (in the VARE) to speak about the specific days on which it had occurred (after the first occasion), JG was unable to give any detail. He said what happened was ‘the same thing’. JG said that it stopped around the time when he told KG about it. He said he had ‘no idea’ when he last saw the applicant before he spoke to KG.
JG was cross-examined by counsel for the applicant in a special hearing. In the context of the issues which must be determined on this application, it is relevant to note that the cross-examination was conducted by counsel with particular sensitivity and care. The questions that were directed to the applicant were phrased in quite simple terms. Counsel delivered the questions in a measured and dispassionate manner.
At the commencement of the cross-examination, JG agreed that when he told the informant, in the VARE, that he could not remember something, that was because he actually could not remember it. He agreed that when he was speaking to the informant he knew it was very important to tell her everything that he could remember. He spoke to the informant a couple of weeks after his grandfather’s funeral (in September 2015). Before doing so, he had spoken to KG twice about the matter. Before he spoke to KG, he had not told anyone else about what the applicant had done.
JG agreed that when he was speaking to KG, and KG told him what had happened to him, that helped JG to remember what had happened between himself and the applicant.
JG agreed that at the time he was fairly close to his mother and his father, but, between 2010 and 2015, he did not tell them about the applicant doing anything to him. He said that he told his mother about a condom on one occasion, but he did not tell his parents about the applicant touching him, having sex with him, or hurting him.
JG agreed that his father and KG did not get on well. Also, JG’s parents argued a lot. As a result, he would leave and go to a neighbour’s house to get away from his parents. He said that when he went to the applicant’s house on the weekend, his parents would take him there. He would then go along with the applicant while the applicant repaired the rides at the supermarkets. He said that he liked to spend time with the applicant. People used to bully him at school, and he liked spending time with people like KG and the applicant.
JG also agreed that, when he was speaking to adults, it was easier for him to agree with them when he was unsure about something or when he got confused. He said that he remembered that he had started to visit the applicant in 2010, because his father and KG had helped him with that detail. He agreed that generally he only went with the applicant when the latter repaired the rides on weekends. He said he liked being with the applicant, he had asked his parents if he could go and spend time with him, and he had asked if he could stay over at the applicant’s home. He said there were interesting things to do there. He again agreed that when his parents came to pick him up, he never told them that the applicant had touched his private parts or put his penis in his anus. He said that he was a bit scared to tell them, he said ‘I don’t know what to say to mum and dad’.
JG agreed that it was generally only on weekends that he would go and see the applicant. However, he would also go on school nights too. He agreed that he had told the informant about a particular date, 31 July 2012, when the applicant took him to do the rides, and that he remembered that date, because ‘it’s my special day, I kind of kissed my ex’. He agreed that he had told the informant that that day was a Wednesday. He agreed he could be mistaken about that. He agreed that when the applicant took him to repair the rides with him, the applicant had to write things down about the work he was doing in a book. Counsel for the applicant produced that book to JG. JG recognised it. There were some of his drawings in it. The book had no entry dated 31 July 2012. JG agreed that he might have remembered the date incorrectly. He agreed that he told the informant that when he went to the applicant’s house on that date, the applicant had just woken up. He said that the applicant used to do night shift work.
JG agreed that when he was telling the informant about what happened on that date, on a number of occasions he could not remember things although he was trying his hardest to do so. He agreed that the first thing he told the informant was that the applicant showed him the condom, and that it had been put on his (JG’s) penis. However, later in the interview, he told the informant that the applicant had put the condom on his (the applicant’s) own penis. He agreed that when the informant asked him what happened next, he had responded that it was a long time ago, and that he was thinking and trying to remember. JG said that he gave that response, because he could not picture what happened next clearly in his mind. When it was put to him (in cross-examination) that he was confused when he was talking to the informant, he agreed. He agreed that he remembered the incident happening in different ways. It was then put to him that that was because the incident did not happen, to which JG responded, ‘not that sure’. Counsel asked him ‘You’re not that sure it happened?’, and JG responded ‘Uh yeah, it happened, it happened’. Counsel then put to JG, in three sequential questions, that the applicant never touched his private parts, that the applicant never showed him his private parts, and that the applicant never put his penis in his anus. In response to each question, JG responded ‘Yes (or yeah) he did’.
JG agreed that when KG told him about what had happened to him, that assisted him to remember what had happened between himself and the applicant. He said that the occasion on which he told his mother about the condom was a different occasion to the ‘special day’ of 31 July 2012. He agreed that he told his mother that he had found the condom in the applicant’s drawer, that the applicant was not happy that JG was looking through his drawers, and that he took the condom away.
JG said that he only stopped seeing the applicant after he had spoken with KG. He said that at the commencement of September 2015, before his grandfather’s funeral, he was still seeing the applicant on weekends and doing the rides with him.
JG agreed that KG used drugs, and that he regarded KG as ‘pretty cool’, and that he looked up to KG. He said that he trusted KG. He agreed that if KG told him something, he would believe it, and that he would ‘stick up for’ KG. He said that when KG, on the day of the funeral, told him what the applicant had done to him, JG believed KG. He said that that helped him remember what had happened.
JG agreed that when he told his mother about the condom, he did not tell her that the applicant had touched his private parts, or put his penis in his anus. He agreed that his father had specifically asked him if the applicant had touched him on the private parts, to which JG had responded ‘No’. He agreed that he told his father that the applicant had not done anything bad to him. JG also stated that when he went to the applicant’s house in September 2015, he was not worried about the things that the applicant had done to him in 2012.
JG said that after his grandfather’s funeral, KG took him aside into one room and said he wanted to speak to him. He agreed that he had a long talk with KG on that occasion. In that conversation, KG told JG that the applicant had touched him and done bad things to him, and that the applicant had had sex with him. KG was very upset and was crying. JG regarded KG as his ‘best mate’ and he felt upset as a result. JG agreed that he wanted to be a ‘good mate’ to KG on that day. He agreed that KG told him that the applicant must have also done ‘those things’ to him, that KG asked him if that was true, and that he agreed that that was true. JG agreed that he wanted to have something special between himself and KG, and that he wanted to have something that the two of them shared. JG also agreed that he wanted to have something that KG would feel sorry for him about. He agreed that on the next day when he spoke to the informant, he did not tell her about the incident of 31 July 2012.
In re-examination, JG said that he did not tell his parents about what had happened, because he was too scared to do so. He said that he spoke to KG about it, because KG was his favourite uncle and he wanted to talk to him about it. He said that KG had told him ‘you can tell me … you can’t get scared around me’. He said that he had continued to visit the applicant after he had done those bad things to him, because the applicant would buy him PlayStation games and take him out on the rides.
KG also gave evidence at the trial. He agreed that JG and he had a close relationship, and that JG looked up to him. He said that on the occasion of his father’s (JG’s grandfather’s) funeral, he asked JG if anything had happened to him. He said to JG that he had had trouble with the applicant before. At that point, JG did not respond. KG was called outside, and then JG called him back inside twenty minutes later, and told him what had happened. JG told him that he had been penetrated. When KG questioned him about it, JG said that it happened more than once.
In cross-examination, KG agreed that he knew that JG could be influenced by his behaviour. He said that when he spoke with JG, he (KG) was crying and JG was comforting him. JG asked KG what was wrong. KG told JG what had happened to himself. KG was suspicious that the applicant had engaged in the same kind of misconduct with JG, and he intended to confirm his suspicion. Initially, JG did not tell him about any misconduct by the applicant. But JG then called him back into the room twenty minutes later and said ‘I’m good (KG), it happened to me too’. KG agreed that, at that time, JG did not tell him something specific had happened in 2012. JG had told him that it had happened more than once. KG asked JG ‘have you been penetrated?’, and, after JG asked what that meant, KG explained what ‘penetrated’ means. JG then responded ‘Yes’. JG also said that it had happened ‘quite a few times’. KG asked JG ‘did he um stick his dick inside you?’ and JG said that that had happened more than once.
The informant gave evidence in which she read into evidence parts of the witness statements taken from AG (the father of JG) and from KH (the mother of JG). Specifically, in his statement, AG said that KH had told him on an occasion that JG had told her that he had found a condom in the applicant’s drawer. In response, AG spoke to JG, who went very quiet and would not speak about it. AG asked JG if anyone had touched him in the private areas, and JG replied ‘No’. AG repeated that question over the next few weeks, and JG always responded ‘No’. When AG spoke to the applicant about the matter, the applicant initially denied he had shown JG condoms. Later in the conversation, the applicant said that JG had found one in his drawer. The applicant assured AG that he had never touched JG.
KH (in her statement) said that on one occasion, when JG was about eleven years of age, he came home from the applicant’s and said that he had found a condom at the applicant’s home, and that he now knew what a condom is and how to use it. AG and she then questioned the applicant about it. The applicant said that JG had found it in his bedside table, and that he had told JG how to use it. AG and she told the applicant it was not right for him to talk to JG about that matter, and the applicant apologised.
Submissions — application for leave to appeal against conviction
In submitting that it was unreasonable for the jury to have returned verdicts of guilty, counsel for the applicant relied on three principal aspects of the evidence of JG, namely: the delay before the first complaint by JG of any sexual misconduct by the applicant; secondly, the inconsistencies and deficiencies in the state of JG’s recollection at the time of the VARE hearing (his evidence-in-chief); and, thirdly, JG’s suggestibility, and his special vulnerability to suggestion, in the circumstances in which he first complained, to KG, of sexual misconduct by the applicant.
In relation to the first matter, counsel submitted that while ordinarily a delay of some three years would not be of consequence, in the present case it was relevant in light of a number of circumstances. They included JG’s age, intellectual impairment and suggestibility, the state of JG’s recollection at the time of the VARE, the denials that he made when asked contemporaneously with the alleged offence whether the applicant had touched him, and the absence of complaint by JG in relation to his continued visits to the applicant’s house until September 2015. In particular, counsel relied on the frequency with which JG responded to questions in the VARE by saying he could not remember something, and the gaps that existed in the accounts given by him of the events in question. Further, although JG had told his mother that he had seen the condom at the applicant’s house, he did not tell either parent that the applicant had sexually interfered with him, notwithstanding that his father had repeatedly asked him whether the applicant had done so. Counsel also pointed out that after the alleged offence, JG continued to spend time at the applicant’s house, and that he had no reservations about doing so.
In relation to the second principal matter relied on — the inconsistencies and deficiencies in JG’s evidence — counsel referred to a number of matters relating to the quality of JG’s recollection in his evidence-in-chief (in the VARE hearing) and in cross-examination (in the special hearing). In particular, counsel noted that JG was confident that the alleged offence had occurred on 31 July 2012, which he claimed was a Wednesday. However, in fact the calendar demonstrated that it was a Tuesday, and the applicant’s business records disclosed that the applicant had not worked on children’s rides on that date. Further, while JG claimed to recollect the specific incident constituting the alleged offence, he was unable to recollect any other specific instances on which the applicant engaged in the same conduct, although he stated that the applicant did so on a number of different occasions.
Counsel also noted that JG frequently answered questions, that related to fundamental facts in the case, by stating that he could not remember. As a result, there were gaps in his account of the offences, which diminished the reliability of his evidence. Counsel noted that, in respect of the incident that was the subject of charge 2, JG initially was unable to describe what had occurred, and, in particular, he did not mention that the applicant had penetrated his anus. It was only after further questioning in the VARE that JG described that aspect of the offence.
Counsel also referred to a number of instances in which, he submitted, the evidence given by JG in the VARE, and in the special hearing, was contradictory. For example, in the VARE, he gave inconsistent answers as to whether the condom had been placed on his own penis or on the applicant’s penis. He also gave different answers as to what he was doing before the offence commenced. At one point, he said that he was playing on a laptop, but at another point he said that he was doing a drawing.
Finally, counsel submitted that there was evidence that JG was a suggestible child witness. He agreed, in the special hearing, that he was a bit of a follower and that he was easily led. He also agreed that he would adopt suggestions put to him by adults. The first person to whom JG complained about sexual misconduct by the applicant was his uncle KG. JG had a very close and trusting relationship with KG, and he looked up to him. Counsel submitted that the circumstances in which KG spoke to JG, and told JG that the applicant had sexually interfered with him, were likely to have influenced both the making of the complaint by JG, and the content of that complaint.
In response, counsel for the respondent submitted that although JG accepted that he might have remembered the date of the offence incorrectly, it was accepted at trial that the applicant could be appropriately convicted of charge 2, because the date was not an essential element of the charge. Counsel for the respondent also noted that while JG complained to his uncle KG three years after the event that was the subject of charges 1 and 2, nevertheless his evidence was that the applicant repeatedly abused him between 2012 and 2015. Accordingly, his complaint to his uncle was proximate to the time that he was being abused. In respect of the suggestibility of JG, KG said that when he spoke to JG he gave no details about the abuse, which he had been subjected to by the applicant. KG did explain to JG what sexual penetration meant, and JG agreed that that was what had happened to him. However, in his evidence, KG stated that he did not insist that JG must have been abused by the applicant. Rather, he reassured JG that he need not feel ashamed about it if that were the case.
Counsel further submitted that, based on a viewing of the special hearing, the jury could have been justified in concluding that JG was not particularly suggestible, and that he was fully capable of resisting propositions that were put to him by an adult. In that respect counsel pointed to a number of questions put to JG in cross-examination in the special hearing, which were rejected by JG.
Counsel further contended that the fact that JG did not complain to his parents is not fatal to his credibility or reliability. The jury was appropriately directed in relation to that aspect of the case, and it was also directed that delay in combination with JG’s intellectual disability may have affected the reliability of his evidence. Counsel contended that the occasions in which, in the VARE, JG stated that he was unable to recall what occurred next, were more a feature of his manner of communication, rather than any deficiency in his memory. In that respect, counsel noted that JG had both an intellectual impairment and a speech impairment. He submitted that a number of the difficulties, that were evident in JG’s recounting to the informant of what had occurred to him, could have been reasonably ascribed, by the jury, to his verbal impairment.
Counsel submitted that the reliability of JG’s evidence was a question for the jury. The jury had the advantage of viewing JG give his evidence in the VARE and at the special hearing and were given proper directions in relation to the assessment of his evidence.
Whether jury verdicts unreasonable — legal principles
The ground, upon which the applicant seeks leave to appeal, is based on s 276(1)(a) of the Criminal Procedure Act 2009, which requires that the court allow an appeal if it is satisfied that the verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’.
The principles, that apply to such a ground, have been discussed in a number of decisions by the High Court and by this Court. They were conveniently summarised by this Court in R v Klamo in the following terms:
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.[2]
[2]R v Klamo (2008) 18 VR 644, 653–4 [38] (citations omitted).
In determining the question whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused, the appellate court is required to undertake its own independent assessment of the evidence that was before the jury.[3] In addressing that question, the court must give full weight to the proposition that it is the jury that is the body entrusted with the primary responsibility of determining guilt or innocence of the accused.[4] In R v Baden-Clay, the High Court stated:
It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[5]
[3]M v The Queen (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); SKA v The Queen (2011) 243 CLR 400, 406 [14], 409 [22] (French CJ, Gummow and Kiefel JJ).
[4]M (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
[5]R v Baden-Clay (2016) 258 CLR 308, 329 [65].
However, that proposition does not preclude the court from undertaking its own independent assessment of the evidence, and, in doing so, from giving effect to the understanding of the frailties of memory and the like which may not be fully appreciated by a jury. In Fennell v The Queen,[6] the prosecution case was essentially based on circumstantial evidence, an important component of which was the identification by two witnesses (Mr and Mrs Matheson) of a hammer which they had lent to the accused and which was alleged to have been the murder weapon. The High Court, in respect of that evidence, stated:
Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused's guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. And especially is that so in a case like this where the jury has been subjected to the seductive effects of a species of identification evidence that has in the past led to miscarriages of justice. For the reasons we have given, and without impugning the honesty of Mr and Mrs Matheson in any way, their evidence was glaringly improbable.[7]
[6][2019] HCA 37.
[7]Ibid [81].
Whether verdicts unreasonable — analysis and conclusion
Thus, the question for this Court is whether, having reviewed and assessed the evidence, it can be concluded that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on the two charges.
The prosecution case relied almost entirely on the evidence of JG. Accordingly, in order to be satisfied beyond reasonable doubt of the guilt of the applicant on the two charges, the jury was required to be satisfied, beyond reasonable doubt, of the credibility and reliability of the evidence given by JG in respect of the incident that was the basis of those two charges. In cross-examination, and in final address, counsel for the applicant focused on the reliability, rather than the credibility, of the evidence given by JG. It was not suggested, either specifically or implicitly, that JG intentionally told untruths in his evidence. Rather, for the reasons already summarised, counsel for the applicant contended that the jury should not be satisfied beyond reasonable doubt that his evidence, as to the offences, was reliable.
In addressing the ground of appeal, it is necessary to consider each of the matters raised by counsel for the applicant individually. However, it is the combined effect of the matters, raised by the applicant, that ultimately must be placed into the scales to determine whether, notwithstanding those matters, it was reasonably open to the jury to convict the applicant on each of the charges.
In order to determine that question, an appropriate starting point is an examination of the circumstances in which JG first revealed to someone the offending which he alleged to have been committed against him by the applicant. At the forefront of the defence of the applicant at trial, and the submissions made on his behalf in this application, was the proposition that, because of JG’s age, disability and relationship with his uncle KG, he was particularly susceptible to the suggestion made to him by KG that the offending must have taken place.
Accordingly, a principal issue at trial, and on this application, was whether, when the complainant gave his version of events in the VARE, and was subject to questioning in the special hearing, he truly recalled an incident that was the basis of the charges against the applicant, or whether, on the other hand, he was recounting an event that had been suggested to him by his uncle and which had become implanted in his memory. In that context, the jury could only have reasonably convicted the applicant if it was satisfied that the complainant’s memory of the event was not the product of the suggestion made to him by KG that the applicant must have sexually penetrated him. On this application, a critical issue is whether the jury, acting reasonably, could have properly excluded that hypothesis as a reasonable possibility open on the evidence.
In considering that question, it is important to take into account the context in which the conversation took place between KG and JG on 21 September 2015. At that time JG was 13 years of age. The jury was informed (as was clearly the fact from a viewing of the VARE in the special hearing) that JG had both an intellectual impairment and a speech impairment. As we will discuss, each of those impairments plainly affected both the manner in which JG was able to communicate, and also his capacity to recall and recount events.
In cross-examination at the special hearing, JG stated that he only trusted his uncle, KG. He had a particularly close relationship with KG. He regarded KG as his ‘best mate’. At the time that KG spoke to him, KG was plainly upset, and was crying. The conversation occurred in the context of the funeral of KG’s father, and JG’s grandfather. KG had just revealed to his own mother that which he was about to reveal to JG. At the time that KG spoke to JG, he had taken methylamphetamine. In cross-examination at the special hearing, JG agreed that the fact that KG was crying made him (JG) feel upset. He agreed that he wanted to have a special bond with KG, and that he wanted to have something special between the two of them. He also agreed, in cross-examination, that he wanted to have something that KG would feel sorry for him about.
It was in that context that the critical conversation took place between JG and KG. In the VARE, JG said that he and KG were in his mother’s room, and she told them to ‘get out’. Accordingly they went into JG’s room. He then said: ‘And [KG] said bad stuff happened to him too about Brad‘. He said that KG ‘told me … what happened’. When asked (by the informant) what KG said, JG responded ‘He done it too, bad stuff done it to him too’. When the informant asked him ‘Who did?’ JG responded ‘Brad done it to [KG]’. In cross-examination JG agreed that he believed KG, when KG told him what the applicant had done to him. He also agreed that after KG told that to him, that helped him (JG) to remember. Importantly, in cross-examination, he twice agreed that KG told him that the applicant ‘must have done those things to you’. He also agreed that KG was sure that Brad had ‘done those things’ to JG.
In his evidence, KG gave a different account of the conversation between himself and JG. In particular, in cross-examination, he denied suggesting to JG that what had happened to him must have happened to JG too. However, KG agreed that on the day of his father’s funeral, he was very emotional, and affected by drugs. He agreed that he was feeling ‘scattered or ratty’ due to the effect of the drugs. He knew that JG was a person who could be influenced by his behaviour. He agreed that he (KG) was crying, and that JG was comforting him, and that it was in that context that he (KG) told JG what had happened to him. KG said that he had a suspicion that the applicant had been engaged in the same sort of misconduct with JG, and he intended to confirm that suspicion. Thus, he commenced by telling JG what the applicant had done to him. KG told JG that he was worried that it had also happened to JG, and that, if it had happened, he must tell someone. He told JG not to be ashamed. KG asked JG ‘have you been penetrated?’. JG asked what that meant. KG asked JG ‘did he, um, stick his dick inside you?’. JG said ‘Yes’. KG then asked JG ‘More than once?’, to which JG responded ‘Quite a few times’.
Pausing there, notwithstanding the differences between the evidence of JG and KG, four points are relevant. First, the conversation took place in a particularly emotional setting in which JG felt sorry for KG, and wanted to comfort him. Secondly, KG told JG that the applicant had sexually assaulted him. Thirdly, KG explained to JG what that meant, and in particular he described the act of penetration to JG. Fourthly, in the conversation, KG conveyed to JG the impression that he was concerned that the applicant had sexually assaulted JG. At the risk of repetition, this conversation took place between a most trusted uncle, and a young thirteen year old intellectually and verbally impaired child, who was at a most impressionable stage of his life. Taken together, those circumstances, in which JG first revealed the offending, raise a real doubt as to whether, when JG confirmed to KG that the applicant had offended against him, he was doing no more than agreeing with his uncle that it ‘must have happened’, in response to the very emotionally charged manner in which KG spoke to him on what was a very sensitive matter.
It was on the next day, 22 September 2015, that JG attended the Geelong Police Station in company with his father, and spoke to the informant, who was then a detective senior constable with the Geelong Sex Offence Child Investigations Team. On that date, JG did not tell the informant that he could recall a specific incident that occurred on 31 July 2012, and he did not tell the informant of any incident involving the condom. One month later, on 28 October, the VARE was conducted in which JG first gave his account to anyone of what had occurred to him. It might be reasonably concluded that, in light of the circumstances which we have just outlined, there was a real risk that JG had become ‘committed’ to the revelation that he had made to KG on the day of his grandfather’s funeral, namely, that the applicant had done something bad to him, by penetrating him in the manner that had been explained to him by KG.
It is in that context that it is important to consider carefully the nature and quality of the description given by JG in the VARE as to the events that were the subject of the charges. It is quite plain, both from a reading of the transcript of the VARE proceeding, and a viewing of the recording of it, that JG’s account of the events, that were the subject of the charges, was significantly fragmented. On a number of occasions, that were centrally relevant to the account that he gave of the offending, JG initially answered questions by stating that he could not remember what had happened. His recollection seemed to evolve as the VARE proceeded. The account that he gave was not sequential. It was, as counsel for the applicant has submitted, quite disjointed. In some material respects, it was internally inconsistent.
In considering the account given by JG in the VARE, we are conscious that JG laboured, not only under an intellectual disability, but also a speech disability. On a number of occasions, he struggled to recall the correct word to describe something that he was trying to express. It appeared, particularly from a viewing of the VARE, that some of the occasions on which JG had difficulties with his memory were due to his speech disability rather than to a problem with his memory of the events he was recounting. Nevertheless, and making due allowance for that consideration, a reading and viewing of the VARE demonstrates that that explanation cannot account for a number of the significant deficiencies and inconsistencies in the evidence given by JG on the VARE.
In the VARE, when JG was describing his visits to the applicant’s home, he volunteered that the applicant ‘always touched my leg … sometimes touched my leg’. He said that he would push his hand away and then go to the refrigerator. He said on those occasions that the applicant would always come really close to him and give him hugs. The informant then asked him if he could remember a time that that happened. JG responded that it occurred in 2012, ‘on July 31 I think’. He said that that was his special day, because his ex-girlfriend kissed him at school. He said that on that day his parents had left him at the applicant’s home, they had done the rides, and went back to his house. He said that the applicant showed him something which he ‘can’t remember’. He then said ‘I thinking about that … a condom I think’. He then said ‘And just show put it on … my dick …’. He then said he could not ‘remember that long’. When asked whether the applicant showed him how to put the condom on, JG responded ‘Yeah’. When asked what the applicant did or what the applicant showed him, JG responded ‘Open it up … the paper thing … the wrapper, I think and put it on his dick’. He then said ‘Yeah, remember that part, nothing else’. When asked where this occurred, he said that he was in the bedroom ‘playing on the laptop or drawing’. He said he thought he was drawing something. He was asked to describe the condom and he said ‘long time ago, I can’t remember now’. He was then asked whether he could remember what the applicant did after putting the condom on his penis. JG responded ‘I remember now … can’t remember now. Something about something, I can’t remember’.
That style of answer was repeated during JG’s description of the ensuing incident. He said that the applicant who had been making coffee came into the bedroom, and told JG not to tell his parents about it. He then said that the applicant touched his (JG’s) penis. When asked to describe it, he said ‘can’t think of it now’. When asked what the applicant did, he responded that the applicant pulled his pants down. When asked what happened next, he said ‘Really can’t remember this part. Something — something bad happened … something like went his bedroom’. He repeated ‘something bad happened, I can’t remember’. JG then said ‘means on his bed … and he got naked’, and the applicant said ‘[JG] you go naked too’. JG then said (in the VARE) the applicant then jumped in the shower, jumped out of the shower and went in his room. JG said ‘I’m still playing on my laptop … no, not laptop, drawing …‘. JG said the applicant told him ‘going underneath the doonas’. When asked (by the informant) what happened, JG responded ‘something really bad … that time, is something about my penis’. When asked by the informant to tell her about that, JG responded that the applicant told him to put his (JG’s) penis ‘up his bum’. When asked what then happened, JG responded ‘and that’s it’. He said ‘Mum knocked on the door’, and that the applicant told him to get dressed and not to tell anyone. He said he got dressed and his mother was waiting for him to go. He said he told his mother about the condom.
After some further questions, the informant asked JG about what occurred when the applicant entered the bedroom, and after the applicant told JG to put his penis into his anus. JG responded ‘nothing’. The informant asked him ‘did he do anything?’, to which JG responded ‘Yeah’. When asked ‘what happened?’ JG said ‘He done at me’. When asked ‘What do you mean?’, JG responded ‘Put his penis up my bum … I think’.
It is clear, from that summary of JG’s evidence in the VARE, that, on a number of occasions, when he gave to the informant his account of what had occurred, that was ultimately the subject of the charges against the applicant, JG could not remember particularly relevant factors that were essential to the proof by the prosecution of the charges against the applicant. At the same time, he contradicted himself on a number of occasions. First, when JG told the informant that the applicant had shown him a condom, he said (to the informant) that he could not think of what happened after that. He said he could not remember. He again at first could not remember what happened, after the applicant had pulled his pants down. He recalled that something bad had happened but he could not remember what it was. Then, for no accountable reason, he had the applicant going into the shower at that point. Yet, earlier in the VARE, when he commenced his description of what occurred, he said that when he arrived at the premises with his parents, the applicant was naked because he had just been in the shower. As a matter of less moment, the complainant was confused whether at the time he was playing on a laptop or drawing pictures. Subsequently, in the special hearing, he said he had a specific recollection of what he would have been drawing (a car and some buildings).
Critically, when JG then recounted that something happened under the doona, and that the applicant had asked JG to penetrate him, he said that nothing happened because his mother knocked on the door. That is, on that account, the event that was the subject of charge 2 had not happened. The informant then returned to the matter, albeit by way of carefully constructed non-leading questions. When she asked JG to tell her what had happened, after the applicant had said to JG to put his penis up his (the applicant’s) anus, JG responded ‘nothing’. It was only when the informant asked JG whether the applicant did something, that JG, with hesitation, said ‘he done at me … put his penis up my bum’ and added ‘I think’. That evidence was the totality of JG’s description of the event that was the subject of charge 2.
In light of the particular circumstances in which JG first revealed to any person (namely, KG) that the applicant had sexually assaulted him, the manner in which JG gave his account of the relevant incident to the informant in the VARE is particularly significant. Taking into account the contents of the conversation between JG and his uncle KG, and evaluating the account that he gave to the informant, there was a real possibility, which we consider could not be rationally excluded, that when JG was giving his account to the informant, he was recounting a version of events that had been the product of suggestion by his uncle, and to which, in the circumstances that ensued, he had become committed.
That proposition is fortified by the concession made by JG, in cross-examination in the special hearing, that when he told the informant that he could not remember something, that was because he actually could not remember it. That concession was made at the commencement of his cross-examination, immediately after JG, in his evidence-in-chief, had agreed that on the same morning as the special hearing, he had watched the video tape of the VARE. Thus, just shortly before JG was cross-examined, he had seen the video tape of the VARE in which, on a number of occasions, he had told the informant he could not remember something.
The concession, so made by JG, at that point in the cross-examination, was in response to a question that was, of its nature, general. However, counsel for the applicant returned to the same proposition, with some specificity, later in the cross-examination. At one point, counsel reminded JG that, when he told the informant that the applicant had shown him a condom and put it on his (JG’s) penis, and was then asked to tell the informant more about that, he had replied ‘I can’t remember that long’. JG agreed, with counsel, that when he gave that response to the informant, he was thinking and trying to remember, but he could not see clearly what was happening. He agreed with the proposition, put to him by the judge, that when he was speaking to the informant, he could not then picture in his mind what had happened.
Counsel also asked JG about the quality of his memory in the passage in the VARE when he recounted to the informant that the applicant had put the condom on his (the applicant’s) penis. At that point, JG had said ‘I can’t remember now … I remember now … can’t remember now, something about something, I can’t remember’. In cross-examination, he agreed that, at that point in the VARE, he could not really remember what happened with the condom. He also agreed that, at one point, he had said that the applicant had put the condom on JG’s penis, but at another point he said that the applicant had put it on his own penis.
It must, of course, be borne in mind that when JG was responding to questions put to him in cross-examination in the special hearing, there was a possibility that he was not, truly, assenting to the propositions that were put to him. However, it might equally be observed that, on a number of occasions in the special hearing, JG resisted propositions put to him by counsel for the applicant. In particular, he twice rejected propositions, put by counsel, that the offending had not occurred, and that other particular features of it had not taken place. Thus, the concession made by JG that, when he said in the VARE that he could not remember something, he truly could not remember it, must be given appropriate weight. There was therefore a real possibility that, when JG was giving his account in the VARE of the incident that was the subject of the charges against the applicant, he genuinely could not remember, in his own mind, aspects of it that were critical to the proof of the charges against the applicant.
Having carefully viewed the VARE, it is not possible to rationally exclude the possibility that JG’s memory failures were not due to his impairment, but, rather, they were due to the difficulty that he was having in recounting an event that had been the subject of the significant conversation with his uncle one month previously, in which his uncle conveyed his concern that JG had been sexually penetrated by the applicant.
In that respect, it is significant that, when JG was cross-examined about the conversation that he had with his uncle, he acceded to the proposition that he did not remember the things that he was telling his uncle about. In that part of the cross-examination, JG agreed that he wanted to have something special with his uncle and something that just the two of them shared. The following passage then took place:
And you didn’t really remember the things that you were telling [KG] about did you? --- No.
You were agreeing with the things he was saying to you? --- Yes.
And you were agreeing because you thought [KG] was your friend? --- Yes.
And he was someone that you trusted especially? --- Yeah.
…
You wanted to have something that [KG] would feel sorry for you about? --- Yes.
When JG was interviewed by the informant in the VARE proceeding, he was only able to recollect one specific occasion upon which, he said, that the applicant had penetrated him, although he also said that that had occurred subsequently on ‘heaps’ of other occasions. The particular occasion, on which JG was then able to recall the penetration had happened, he said, on 31 July 2012. JG was then ten years of age. The fact that he said that he recollected a specific event that had occurred some three years previously, but that he could not recollect any other event that had occurred in the meantime, adds to the possibility that, when JG spoke to the informant, he recounted something that he was told must have happened, rather than something which in fact had occurred. Similarly, in cross-examination at the special hearing, JG was unable to recall any other incident (from the ‘heaps’ of other occasions) in which the penetration had occurred. Nor, significantly, could he recall the last incident that had occurred before he spoke to his uncle on 21 September 2015. There was, as counsel for the applicant has submitted, a substantial incongruity about the capacity of the applicant to specifically recall an event that occurred three years previously, in circumstances when he could not recall any other specific occasion, and particularly the last occasion, when the offending occurred before he spoke to his uncle.
It might be added that the particular circumstances, in which JG claimed to have a real recollection of the first incident, are attended with a degree of doubt. As we have noted, JG said that it happened on a special day, because it was the day on which he had kissed his ex-girlfriend. He said that he remembered the date, because he used his telephone. He said that on that day, after arriving at the applicant’s home, he had accompanied the applicant while he repaired rides at supermarkets. That proposition was contradicted by the applicant’s work diary (which consisted of an exercise book), which demonstrated that the applicant did not repair rides on that date. In that context, it is also relevant to recall that when JG spoke to his uncle on 21 September 2015, and when he spoke to the informant on the next day, he did not then mention or apparently recall the specific occasion which he related in the VARE one month later, and which was the subject of the two charges against the applicant.
It is also relevant to take into account the conduct of JG between the date of the offences (31 July 2012) and the date on which he first spoke with his uncle about the alleged offending in September 2015. JG did not, in that period, at any time tell his uncle, his parents or anyone else about the offending. The lack of such complaint was subject to appropriate directions by the judge to the jury under s 52 of the Jury Directions Act. Ordinarily, for the reasons explained by those directions, the absence of complaint by a young complainant might be of little moment. However, in this case, it is relevant that JG did tell his mother that he had found a condom at the applicant’s home and that he now knew what a condom is and how to use it. When questioned by JG’s parents, the applicant confirmed that he had told JG how to use the condom. JG felt no compunction in telling his parents about the condom or that the applicant had told him how to use it. It is notable, in those circumstances, that if the events, related by JG to his parents, had occurred as part of the alleged offending, JG did not tell his parents about that offending, or at least refer to some aspect of it. That is particularly so in circumstances in which his father, in the ensuing weeks, asked JG, on a number of occasions, whether the applicant had ‘touched him in the private areas’.
More significantly, after the alleged offending in July 2012, JG continued to visit the applicant regularly in his home, and was quite happy to do so. In cross-examination, he said that he would ask his parents if he could go and spend time with the applicant. On occasions he stayed overnight with the applicant. He said that he enjoyed visiting the applicant. They would watch movies, and there were plenty of interesting things for him to do. He said that he last attended the applicant’s home in September 2015. On that day, he took his own laptop with him and watched a movie. He said that he was not worried about what the applicant had done to him in 2012, he was not thinking about that matter, and it was not on his mind.
It must be remembered that at the time the atmosphere at JG’s home was not particularly happy. It would appear that JG’s parents argued frequently, and JG often sought to avoid the atmosphere in the family home by visiting friends, including the applicant. Nevertheless, on the account given by JG, when he visited the applicant, he was repeatedly sexually assaulted in a manner which must have been most unpleasant for him. It is a common fact of human experience — which would be known to any jury — that young children are particularly averse to revisiting a place or an institution where they have suffered unpleasant experiences. The fact that JG chose repeatedly to visit the applicant — there was no suggestion that his parents required or forced him to do so — adds further weight to the improbability of the account given by JG that, not only had he suffered a most unpleasant experience at the hands of the applicant in July 2012, but that it had subsequently occurred again on a large number of occasions during those visits.
So far, we have been discussing the various matters, raised by counsel for the applicant, individually. However, it is the totality of those matters, taken collectively in combination, that were required to be considered by the jury.
For the reasons that we have outlined, it is clear that when JG first said that the applicant had offended against him, he was responding to the concerns to that effect raised with him by his uncle, who he trusted, and with whom he wished to share something special. He wanted to provide some comfort to his grieving uncle. Those circumstances, of themselves, were fraught with the possibility that JG’s assent, to what was raised with him by his uncle, was not a true assent, but, rather, was given by him to a version of events which he considered might please or satisfy his uncle. From that point there was a reasonable possibility, if not a probability, that JG was, in effect, ‘wedded’ to that account. Relevantly, it was on the next day that he spoke to the police.
Importantly, when JG was interviewed in the VARE, his recitation of the events was marked by gaps in his memory, and the account that he gave was fragmented and not sequential. It was consistent with a young, impaired, adolescent trying to remember what he felt he was required to say, rather than trying to reveal the contents of a true memory held by him. The contradictions contained in his account further undermined the reliability of it. The delay in making any complaint, the circumstances in which the complaint occurred, and his failure to reveal the offending to his parents when it might have been expected that he would have done so (when he told his mother that he had found a condom at the applicant’s place), all add to the improbability of the proposition that his evidence was a reliable recollection of what had actually occurred. Finally, the fact that he happily returned to the applicant’s home on repeated occasions, notwithstanding that he was being subjected to what must have been a most unpleasant experience, adds further to the potential unreliability of JG’s account.
Putting those matters together, in our view a jury, acting reasonably, could not have been satisfied beyond reasonable doubt of the guilt of the applicant. In particular, in the circumstances that we have outlined, we consider that there is a reasonable possibility, which could not be rationally excluded, that when JG gave his account of the events to the informant in the VARE process, he was then recounting a version that had evolved and developed in his mind as a result of the conversation with his uncle KG, rather than the content of a recollection of an event that truly occurred.
In undertaking the foregoing analysis and assessment of the evidence, we have not lost sight of the principle that it is the jury that is the institution entrusted with the adjudication of the question whether the guilt of an accused person has been proven beyond reasonable doubt. Nor have we lost sight of the inherent advantages of that judgment being made by twelve men and women, drawn at random from the community, who have brought into their deliberations their respective experiences of life, and the wisdom that they have accumulated as a result of them. Those considerations must always be given substantial weight in the determination of an application such as the present. Nevertheless, for the reasons that we have outlined, we are persuaded that the verdicts in this case were unreasonable, in that a reasonable jury could not have been satisfied, beyond reasonable doubt, of the guilt of the applicant of the charges that were brought against him.
In reaching that conclusion, we have borne in mind that there was some evidence which gave limited support to one part of the account given by JG on the VARE of the circumstances that were the subject of charge 1. As we have noted, at some time, JG did report to his mother that he had found a condom at the applicant’s home. When JG’s mother spoke to the applicant, he confirmed that JG had found the condom, and that he (the applicant) had told JG how to use it.
That evidence, of itself, only provides limited support to the circumstances that were the subject of charge 1. It falls well short of supporting the evidence of JG that the applicant produced the condom, and put it on his own penis in the presence of JG. JG’s account in the VARE was that the production by the applicant of the condom, and the fact that he put it on in the presence of JG, was part of the lead up to the conduct which constituted the second charge, namely, the anal penetration of JG by the applicant. Thus, the matters that we have discussed relating to the reliability of the account given by JG, as to that event, apply to the consideration as to whether the conviction of the applicant, on charge 1, was reasonable.
In addition, there were a number of material internal inconsistencies in the account given by JG relating to the condom itself. First, on the account that he gave in the VARE, the applicant produced the condom. However, his mother’s evidence was that JG told her that he had found the condom. In cross-examination at the special hearing, JG confirmed that he found it. Secondly, as already discussed, when JG first referred to the condom in the VARE, he said that the applicant put it on his (JG’s) penis. In cross-examination on the special hearing, JG acknowledged that he had told the informant that the applicant had put it on his (JG’s) penis. However, later in the account given in the VARE, JG said that after the applicant produced the condom, he put it on his own penis. Thirdly, there was significant confusion and inconsistency about when JG found the condom, or when the condom was produced by the applicant. In the VARE, he said that it occurred ‘last year (that is, 2014) or 2012’. According to JG’s father, his wife spoke to him about it ‘a couple of months ago’ (that is, in 2015). Fourthly, as a related matter, in cross-examination at the special hearing, when JG was asked whether the condom, that he told his mother about, was the same one that he had seen on his ‘special day’ (that is 31 July 2012), he responded ‘No’, and said that it was ‘… different condom’.
Thus, while there was some limited support for a part of JG’s evidence in respect of charge 1, on analysis, that support was deficient and wholly insufficient to preclude the conclusion that we have reached, namely that a reasonable jury could not have been satisfied, beyond reasonable doubt, of the guilt of the applicant, not only on charge 2, but also on charge 1.
It follows that the application for leave to appeal against conviction must be granted, and the appeal must be allowed. The convictions of the applicant on both charges must be set aside, and in lieu verdicts of not guilty be entered on the record.
In light of that conclusion, it is not necessary for us to determine the application for leave to appeal against sentence. Nevertheless, in this case, it is appropriate to observe that the applicant had available to him very significant personal mitigating circumstances which were properly outlined by the judge in his reasons for sentence. In light of those mitigating circumstances, we do consider that there was substantial force in the submissions made by counsel for the applicant in support of the application for leave to appeal against sentence.
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