C R R v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2008 0980

CRR
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and HARPER JJA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 2011
DATE OF JUDGMENT:	16 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 142
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Duggan, 18 December 2008)

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CRIMINAL LAW - Appeal – Conviction and sentence - Maintaining a sexual relationship with a child under the age of 16 years – Complainant the daughter of the offender – Failure of trial judge to direct jury about use of expert evidence – Conceded error – Whether verdict unsafe or unsatisfactory – Consideration of the whole of the evidence – M v The Queen (1994) 181 CLR 487 applied – Whether evidence to be adduced at trial of sufficient cogency to justify a conviction – DPP (Nauru) v Fowler (1984) 154 CLR 627 applied – KRMv The Queen (2001) 206 CLR 221, The Queen v SLJ [2010] VSCA 16 and REE v The Queen [2010] VSCA 124 discussed – Judgment and verdict of acquittal entered.

Crimes Act 1958, s 47A

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Doyle	Sullivan Braham Pty Ltd
For the Crown	Mr D A Trapnell, SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:
HARGRAVE AJA:

We have had the advantage of reading the reasons for judgment of Harper JA in draft. We agree in his Honour’s conclusion that, having granted the applicant leave to appeal against conviction, and having allowed the appeal, the Court should direct that a judgment and verdict of acquittal be entered. We should explain, however, in our view why that course is mandated.

In October 2008, the applicant, a man now aged 50, was found guilty of maintaining a sexual relationship with a child under the age of 16. This was his second trial for the offence. In February 2008, a jury had been unable to agree upon a verdict. The complainant was his daughter, and she was aged about seven at the time of the alleged offending. He was aged between 42 and 43 at the relevant time. The acts alleged against the applicant were – (a) digital vaginal penetration; (b) penile vaginal penetration; (c) fellatio; and (d), masturbation of the applicant by the complainant. Proof of three incidents, whether of the same or of different kinds, was required to establish the offence.

Subsequent to the jury’s verdict, the applicant was sentenced to 12 years’ imprisonment, with a non-parole period of 10 years.

The family and the offending

A little later, we will set out the gist of the complainant’s evidence concerning the applicant’s offending. We need not repeat all that Harper JA has detailed; and it will be evident that in some respects we do not agree with his Honour’s analysis of events. But first, we should set the scene.

The complainant’s family consists of herself, a brother who is a year older, her mother and the applicant. In the years preceding the alleged offending, the family was most dysfunctional. They lived in a number of different places in Victoria, in rented homes or caravans. At the commencement of the period of offending particularised in the presentment, the family was living together in suburban Melbourne. A few months later, the mother moved to alternative accommodation in the same suburb with a new partner. The children continued to live with the father, who was unemployed. Although the complainant was only six years old and her brother seven years old, they were caught roaming the streets and on trains, and engaging in shoplifting and other inappropriate conduct. In August 2003, they were taken into custody by the Department of Human Services. Following an application to the Children’s Court, the children were returned into the custody of the applicant. That was in November or December 2003. In early 2004, for a short while, the applicant and the children moved in with the mother and her new partner. They then shifted into a unit which was on the same property. The complainant alleged that the offending commenced at the first property and continued in the unit on the second property.

The offending, according to the complainant, occurred when she was aged seven. Her first verified complaint was made on 31 August 2004, when she was nearly eight.

The presentment alleged that the offending took place between May 2003 and August 2004. To the extent that the evidence was capable of sustaining that allegation, it meant that the offending in fact began when the complainant was aged six.

The complainant’s evidence

The complainant was aged nearly eight when she took part in a recorded interview. She was 11 when she gave evidence at the applicant’s first trial in February 2008. She was 12 when she gave evidence at his second trial at which the jury returned its guilty verdict.

In the recorded interview, the complainant described in clear and graphic terms how the applicant inserted his penis into her vagina (‘put his doodle in my rude part’), inserted his finger in her vagina, made her masturbate him until ejaculation, made her watch whilst he masturbated to ejaculation and made her engage in fellatio upon him and ‘swallow this white stuff’. The complainant said that this conduct would usually occur when her brother would ‘nick off’ on the weekend to steal things and, sometimes, when her brother was in the shower. She said that the acts of sexual penetration made her feel ‘itchy, and sore, and angry.’ She said that she would sing to herself when being molested and did not object because ‘I couldn’t do nothing, or he would’ve punched me’ (indicating with her hands how her father ‘had his fists right up’ when she would speak or sing).

As to the frequency of this conduct, the complainant said that the applicant penetrated her with his penis about 20 times, ten times at the first property and ten times at the second property; and she gave evidence of at least one other occasion on which the other forms of sexual assault occurred. As to fellatio, it is clear that the complainant said this occurred on one occasion only, at least to the extent of being made to swallow. She said that happened on only one occasion and that it made her have a soft drink ‘because [the] stuff tastes gross’.

Later in these reasons, we will have more to say about aspects of the complainant’s evidence.

Dr Smith’s evidence

Evidence capable of corroborating the complainant’s account that she had been penetrated by the applicant’s penis was given by a medical practitioner, Dr Andrea Smith. From early 2002, the doctor had worked in child protection, and also as a general paediatrician. She interviewed and examined the complainant on 31 August 2004. She found an old, healed complete transaction of the hymen at six o’clock. We interpolate that this finding was not disputed at the trial. She opined that the damage had been done a minimum of two to four weeks’ earlier, but that it could have been done two to three years previously. She also opined that the most likely cause of the damage was penile penetration.

As in the case of the complainant, we will return to consider particular aspects of the doctor’s evidence later in these reasons.

Complaints

The complainant first made complaint of sexual interference at a consultation with Dr Anthony Weldon, consultant paediatrician, on 31 August 2004. She had been under that doctor’s care since October 2003, having been referred to him for significant behavioural problems including swearing, violence, theft and sexually precocious conduct. Evidence of the complaint appears to have been admitted under s 41D of the Evidence Act 1958 both in proof of the truth of the representations made, and to support the complainant’s credibility. The same was the case in respect of complaints made to Dr Smith later on 31 August 2004. So far as there was said to be delay in complaint, s 61 of the Crimes Act 1958 was in point.

Failure to give an expert witness direction

But complaints could only take the Crown so far. The prosecution must have failed if the complainant’s evidence was not accepted. In turn, to reiterate what we have already said, that made Dr Smith’s evidence important – because it was capable of directly corroborating the complainant’s allegation that she had been penetrated by the applicant’s penis.

Dr Smith’s evidence was attacked. Most importantly, there was challenge to her opinion that the most likely cause of the old damage to the hymen was the insertion of a penis. An alternative cause was postulated – that the complainant had injured herself by pushing an object into her vagina. There was, we interpolate, a substantial body of evidence (it included her eventual admissions) that this was conduct in which the complainant had quite often engaged.

In part, the doctor’s opinion was attacked as being the product of a partisan witness.

In the circumstances which we have described, it was important that the judge should give the direction which is ordinarily given as to the way in which a jury should consider the evidence of an expert witness. But the judge gave no such direction, and Senior Counsel for the Crown properly conceded in this Court that this defect had been productive of a miscarriage of justice.

Unsafe or unsatisfactory?

Counsel’s concession, however, did not exhaust the grounds of appeal. In particular, there was a ground that the verdict was unsafe or unsatisfactory. Counsel for the applicant pursued that ground, which focuses upon the evidence given at the trial which has been had, and which bears upon the order which the Court should make to dispose of the matter. In those relatively rare cases where the ground has been made out, the conviction has been quashed, and acquittal entered.[1]
[1]We except the different kind of case described by Weinberg J (as his Honour then was) in Tran (2000) 118 A Crim R 218, 226-230 [60]-[84], where the ground is used to describe an error in the trial process. In such a case, a re-trial may be ordered.

The question whether to enter an acquittal rather than order a retrial may also arise, as a live issue rather than as simply a statutory possibility, in a case in which some other error has been demonstrated. Then the question is whether the interests of justice require a new trial to be had. One, but not the only, aspect of that issue is whether the evidence at the original trial was sufficiently cogent to justify a conviction.[2]
[2]DPP (Nauru) v Fowler (1984) 154 CLR 627, 630. Other circumstances which may be pertinent in such a case were discussed by Kirby J in Dyers v The Queen (2002) 210 CLR 285, 314-315 [81]-[83].

Counsel for the Crown submitted that the question whether a verdict was unsafe or unsatisfactory involves application of the same test as that which is applied in deciding whether the evidence given at the original trial was sufficiently cogent to justify a conviction. He cited R v Wei Tang.[3] But there, Eames JA did not decide the point.
[3][2007] VSCA 144, [8] (Eames JA, Maxwell P and Buchanan JA agreeing).

In our opinion, again without resolving the issue, the correct starting point is to consider and decide the unsafe or unsatisfactory ground of appeal. This was the sequence followed by the High Court in Dyers v The Queen.[4]
[4](2002) 210 CLR 285, 297 [22]-[23] (Gaudron and Hayne JJ); 317 [88] (Kirby J, dissenting in the result, but not in principle), 330-331 [132]-[134] (Callinan J).

The question for the Court’s consideration on the unsafe or unsatisfactory ground is set out in M v The Queen,[5] in passages cited in Nguyen v The Queen.[6] As Ashley JA noted in Rodi v The Queen,[7] what was said in M v The Queen is compatible with the observations of Hayne J in Libke v The Queen.[8] [9]
[5](1994) 181 CLR 487.
[6](2010) 85 ALJR 8, 14 [33].
[7][2011] VSCA 48, [19].
[8](2007) 230 CLR 559, 596-597, [113].
[9]See Mustica v R; DPP v Mustica [2011] VSCA 79, [49].

It is important to remember the question is not whether there was any evidence at trial which would support a conviction; but whether, on the whole of the evidence adduced, the jury must have had a reasonable doubt as to the accused’s guilt.[10] The fact that the answer to the first question will be ‘yes’[11] does not mean that the answer to the second question must be ‘no’.
[10]SKA v The Queen [2011] HCA 13 [20]–[24] (French CJ, Gummow and Kiefel JJ).
[11]This must be assumed, since the matter has been permitted to go to the jury.

It is a rare event that an appellate court concludes that a conviction was unsafe or unsatisfactory. But a court would fail in its duty if it did not uphold the ground where the evidence led to that conclusion.

Against the background of principle which we have described, we consider that the applicant’s conviction was unsafe or unsatisfactory. In our opinion, the jury must have had a reasonable doubt of guilt, for which reason it was not open to it to be satisfied beyond reasonable doubt that the applicant was guilty.

In arriving at that conclusion, we have not forgotten that it was the jury, not us, which saw and heard the complainant give her evidence; likewise Dr Smith. That is a circumstance to which the plurality in M v The Queen[12] referred, in a passage cited by the High Court in The Queen v Nguyen:[13]

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.

[12](1994) 181 CLR 487, 494-495.

[13](2010) 85 ALJR 8, 14 [33].

In this case, in our opinion, the jury’s verdict did not carry the weight which should ordinarily be accorded a jury verdict. That is so at least because – (a) the evidence of Dr Smith was important, for the reason which we have already explained; (b) Dr Smith’s evidence was by no means uncontroversial; and (c), the judge failed to give the jury any expert witness direction.

Further, in arriving at a conclusion that the jury must have had a reasonable doubt of the applicant’s guilt, it is relevant that – (a) what we perceive to be the inadequacies in the Crown case are patent in the transcript of the evidence; and (b) this Court had an opportunity of viewing (almost all of) the complainant’s evidence-in-chief, given by the recorded interview.

The applicant’s case

The applicant’s case was that he had not offended.[14] His case was advanced by a record of interview, made on 17 September 2004, which was put in evidence, by cross examination of the complainant and Dr Smith, and by evidence adduced from the complainant’s maternal grandfather.
[14]Which is not to suggest that the applicant bore any onus of proof.

It would be wrong to perceive the applicant’s case as being simply a credit attack on the complainant and Dr Smith. It is true that the credit of each of them was attacked. But that was an adjunct to the applicant’s response, which was that he had not interfered with the complainant, that she had made up the allegations having the knowledge to be able to do so, and with a motive for doing so; and which advanced an alternative possible explanation for the damage to the complainant’s hymen.

To take the matter a little further, some of the attack upon the complainant and Dr Smith served two purposes. It did have a purely credit element; but it also had an element which went to the heart of matters in issue. So, for instance, the complainant’s admission at the second trial that she had been accustomed to insert objects into her vagina over a period of time before her examination by Dr Smith was relevant to the alternative hypothesis which the defence advanced for the damage to her hymen; whilst her denial at the first trial that she had done such a thing was a prior inconsistent statement potentially bearing upon her credibility. So also, Dr Smith’s failure to ask the complainant about that activity (having been alerted to it by the child’s mother) was said for the defence to reveal her partisan attitude; but it was significant also because it meant that the doctor’s opinion was founded upon an incomplete history.

In our opinion, to be very clear, the jury’s verdict was unsafe or unsatisfactory regardless of any perceived success of an attack purely on the credit of either the complainant or Dr Smith. Our conclusion turns upon the substance of the evidence adduced; and thus upon the reliability of the evidence of the key witnesses. Attacks on the credit of the complainant and Dr Smith did, however, as it seems to us, have a substantial basis; and that reinforces the conclusion which we would otherwise reach.

The Complainant’s evidence revisited

Our conclusion that the jury must have had a reasonable doubt of the applicant’s guilt is based in part upon the complainant’s own evidence.

First, the allegations which the complainant made in her recorded interview, and which she later repeated – more or less – at the applicant’s two trials are such that one immediately thinks ‘How could a young child make up such things if they had not occurred?’ But the evidence showed that she could definitely have done so. By her own admissions, confirmed by the evidence of her mother, the complainant had the knowledge – derived from watching her parents engage in sexual activities, and from watching a pornographic DVD[15] – to fabricate every one of the allegations which she made. Her knowledge included details such as the appearance of ejaculate, and the use of a towel for cleaning purposes.
[15]Although the mother gave evidence that the time spent by the complainant watching the pornographic DVD was less than the complainant’s own evidence suggested was the case.

Second, by her own admissions the complainant had a motive for fabricating the allegations which she made. Simplistically, she hoped that the result of her making the allegations would be that she would be removed from her father’s custody and given into her mother’s care. The significance of such a move, from her standpoint, was this: when she first made complaint her mother had recently given birth to twin babies, and the complainant wanted to be with them.

Third, there was clear evidence that the complainant, as a very young child, had engaged in a variety of sexual activities with her slightly older brother. Further, at a young age, according to the evidence of a family friend called by the Crown, she had felt his penis through his pants; and had repeated that conduct after he had told her not to do so, and had moved her hand.

Fourth, not volunteered, but in answer to a question asked by Dr Smith, the complainant stated that she had bled from the vagina on a number of occasions after the applicant had penetrated her. One such occasion had been when her father penetrated her whilst they were in her grandfather’s car. As a result, there was blood on the seats. According to her evidence at the second trial, she had shown the bloodied seat to her grandfather.

The grandfather was called by the Crown. There was no suggestion that he should be regarded as an unreliable witness, specifically with respect to the matter now under discussion. The grandfather denied ever seeing such a thing.

The complainant was not asked during the recorded interview about any bleeding from her vagina as a result of the applicant sexually penetrating her. Further, although she volunteered a great deal of information, she said nothing about bleeding or about any significant pain beyond feeling ‘itchy, and sore, and angry’. In particular, she made no reference to the occasion on which, on her account, there was blood on the seat of her grandfather’s car following sexual penetration by the applicant.

Fifth, the evidence was overwhelming that for some period before her examination by Dr Smith the complainant had often pushed objects – the mother mentioned the handle of a fork and a spoon – into her vagina. The only question was how far.

The evidence that the complainant had acted in such a way was given by her mother, and mentioned – in hearsay form – by the applicant in his record of interview. At the second trial, the complainant admitted acting in the described manner. She had denied it outright at the first trial. She admitted also that her denials at the first trial had been lies.

Sixth, it is the fact that the complainant attended Dr Weldon on five occasions between October 2003 and August 2004, having been referred to him in the circumstances which we mentioned earlier. It was on a sixth occasion that she first complained that the applicant had molested her. She gave differing explanations, on different occasions, for not having mentioned the matter earlier. They included the applicant having told her not to do so; and that, if she did so, he would hurt her.

Delay in complaint would be readily understandable, we consider, in ordinary circumstances. But here the circumstances were not ordinary. First, the complainant had been attending Dr Weldon for nearly a year with respect to behavioural problems including sexually precocious conduct. It included flaunting herself and hugging people after only brief acquaintance. She trusted the doctor, who asked her about problems in her life. She told him nothing that is presently relevant. Second, in late August 2004, by contrast with earlier times, she had a motive (as she perceived it) to fabricate allegations against her father.

Seventh, the complainant gave evidence that she believed she had suffered a head injury when aged eight or nine. It had affected her memory. But now, she said, she was ‘starting to remember it’.

Eighth, there was clear evidence – from the child’s mother and maternal grandfather, and as well in the applicant’s record of interview – that the complainant was from a very early age an inveterate and practised liar. The complainant largely admitted it in cross-examination. She admitted to telling stories about other people which were not true. We do not mean to imply that our conclusion that the verdict was unsafe or unsatisfactory rests upon want of credibility. Rather, the complainant’s admitted facility as a liar is another objective circumstance which is contained in the record of the trial.

Ninth, there were many occasions in cross-examination which revealed inconsistency in the complainant’s evidence. In some instances, the inference that the complainant was lying is almost inescapable. But even taking these inconsistencies as just differing recollections at different times, they were of a serious kind in the circumstances of the particular case. For example:

(a) At the first trial, the complainant said that the applicant’s offending began when she was four years old. At the second trial, she acknowledged that this evidence was false.

(b) The complainant acknowledged that she had seen her father’s penis in innocent circumstances on many occasions. At the first trial, when she made a drawing of marks on her father’s penis, she agreed in cross-examination that she ‘didn’t see any tattoos on his doodle’. She was asked at the second trial whether that was truthful evidence. She said it was not truthful evidence and said that her evidence in chief (at the second trial) that she had seen tattoos on her father’s penis was correct. When faced with the inconsistency, she said that she ‘got confused’ (at the first trial) and that she had ‘just remembered’ or that she ‘couldn’t remember, but now I do’.

(c) The complainant gave inconsistent evidence concerning the time of the last sexual assault upon her. Her versions varied between ‘it happened the day before’ she made her complaint to Dr Weldon, ‘I think a month or two’ before the complaint to Dr Weldon and (at the committal hearing) ‘I think it was two weeks’ before the complaint to Dr Weldon. Again, the complainant sought to justify the differences in her account by saying that she had ‘just remembered’ the true position. A further version was given to Dr Smith, whose notes record that the final assault took place ‘two days ago, about 2 o’clock’.

(d) The complainant gave inconsistent evidence about the number of times she performed fellatio upon her father and was asked to swallow his semen. At the committal hearing, she said that this happened on two occasions. She acknowledged in cross-examination that this was false, and it happened on only one occasion.

Dr Smith’s evidence revisited

Our conclusion that the jury must have had a reasonable doubt of the applicant’s guilt is also founded in part upon unsatisfactory aspects of Dr Smith’s evidence.

The doctor interviewed and examined the complainant on 31 August 2004. She took a detailed history from the complainant, before examining her. In taking that history she asked no questions directed towards a comment which had been made by the child’s mother. The comment was: ‘She won’t have a hymen, she’s always poking things in there.’ Dr Smith recorded the history in her notes. It went well beyond the history that was required in order for the doctor to conduct an appropriate examination and form a relevant opinion.[16] In any event, the doctor’s history, given in evidence, was as follows:

… my usual question when I have a girl like this in the room is, ‘Why are you here to see me?’, and she answered, ‘Because my dad used to put his rude part into me.’ And I asked her what her – his rude part was, ‘Like his rude part, his doodle into my rude part’, and I again asked her what her rude part was, and she said her fanny. And I said, ‘When?’, and she said, ‘Mainly when [the brother] is at the skate park’, and [the brother] is her older brother. ‘Where?’ ‘At our old house.’ ‘And where in house?’, and she said, ‘In his room’, and I asked her, ‘Where in the room?’ ‘On the table.’ And then she went on quite spontaneously. ‘Sometimes he gets this, his doodle out and he makes me put my mouth on it and shake it’, and she demonstrated an up and down movement with her fist. ‘Sometimes white stuff comes out, and sometimes he makes me swallow it, and sometimes his finger goes in my vagina.’ And I asked, ‘How does that feel?’ ‘It feels – it hurts, and it makes me get angry.’ And then I asked her, ‘When does it hurt?’, and she said, ‘When his finger and doodle are in there.’ And then I asked her what his doodle looked like, and she answered, ‘Sometimes it’s tiny, and when I go like that’ – and again she sort of demonstrated this up and down movement – ‘It goes big. His balls are that big’ - and she demonstrated a size of about five by 10 centimetres – ‘And his doodle is that big’, and again she sort of demonstrated a approximately 15 centimetre size. I asked her what the white stuff looked like, and she said, ‘It looks like this gooey stuff.’ I then asked her, ‘Have you ever bled anywhere on your body?’, and she answered, ‘Yes, when he pulled his doodle out there was this bleeding. Going up a hill in Pop’s car, he pulled up at the side of the road and got on top of me. Then he took his thing out’ – and she meant his doodle – ‘And then he put it in this hole’ - and she was pointing to her genitals at the time – ‘And that’s about all.’ I asked her how often she’d had bleeding and she said about six times, and then she went on to say, ‘My dad came out and seen blood on his doodle. He thought it was his, but it was mine. I checked mine, I saw blood everywhere, on the seat and on my vagina, on my pants only.’ I again asked her about the bleeding and she said it had happened once in the car and five times at home. I asked her how long these alleged sexual assaults had been happening for and she said, ‘Since we were living in [the first property] in 2003.’ And again I asked her how often roughly they were occurring, she said, ‘On a weekend when [the brother] nicks off.’ And then I said, ‘Is there anything that he says to you at these times?’, and she said, ‘Yeah, he said I'm not allowed to tell people, but I have to, that’s about it.’ I then asked her about the last occasion of alleged sexual assault, and when did it last happen, and she said, ‘Last Sunday, two days ago, about two o’clock’, and I made sure we were talking about the same Sunday, which was two days prior to my assessment. And then she said, ‘Lush out at 2.01., and I asked her why, and she said, ‘Because blood was coming out and this goo was on my fanny.’ And she said, ‘The goo was like this cream that you put on your doodle and on your vagina.’ I asked her to describe the goo, and she said, ‘It’s a cream in a yellow container with a white lid, and the actual goo itself is white-yellowish in colour.’ And then she said, ‘Sometimes he puts a condom on.’ [The complainant] denied bleeding or pain since the alleged sexual assault on the Sunday two days prior to my assessment, and I asked her if she had felt sore, and she said, ‘It feels sore when I pass urine’, and I asked her when the last time that had been, and she said, ‘Monday morning at nine o’clock at school’, which was the morning prior to my assessment. And then I asked her about, where are the clothes that she was wearing at the time of the alleged assault, and she said that her underpants were in the wash at Dad’s house, and she told me that they’d already been washed. And later on I asked her about, had she showered or bathed, passed urine, those sort of questions. And then she told me that she had witnessed Mum and Dad have s-e-x.’

[16]It is unnecessary to decide whether the ‘excess’ history ought to have been accorded the dual evidentiary status permitted by s 41D of the Evidence Act.

Dr Smith then conducted a physical examination. She gave evidence that her examination ‘revealed an old, healed, complete transection at 6 o’clock on the hymen. It had extended to the base of the hymen and there was a scar on the vaginal wall, at the base of that transection.’ The doctor then explained that a transection is the medical term for a split in the hymen and continued:

Were you able to estimate any age of the scarring or the transection that you saw?---The transection was a healed, old transection. By saying that, I mean it was the flesh coloured colour of the hymen. There were – there was no evidence of acute injury such as redness, bruising, bleeding on that transection. And so given that it was relatively well – was well healed, I would estimate that it’s at least two to four weeks of age, but it could be older than that, easily.
So what did the position of the transectional injury at the six o’clock position suggest medically to you?---Right. It’s a very significant genital finding, and it – the six o’clock position, or we call it the posterior part of the hymen, which is from three o’clock through to nine o’clock, particular between four and eight, that’s the part of the hymen that’s most vulnerable, particularly in or during episodes of penile penetration of a vagina. So the six o’clock position is part of the most vulnerable section, and it’s because the way the penis scoops into the vaginal vestibule, it often abuts the hymen on the way into the vagina. So to find a finding like this in a young girl without any allegations of sexual assault is actually very concerning for sexual assault, and with allegations of sexual assault it obviously supports her allegations of sexual assault.

The prosecutor’s questions then turned to addressing the issue raised by the complainant’s mother about the possible insertion of inanimate objects by the complainant into her vaginal passage. The doctor said that such conduct would:

(a) ‘raise concerns that that child's been exposed to sexually explicit information, be that watching adults partake in sexual acts or watching adult pornography or perhaps being sexually assaulted themselves’;

(b) likely cause pain if the hymen was reached and stretched, at which point ‘most children would actually stop and pull out the toy’;

(c) most likely cause bleeding if the insertion caused the large transection which she observed:

So I would think there's a very high degree of the chance that there was bleeding and probably quite significant bleeding. I can't absolutely exclude that an object didn't cause that transection. I would think it unlikely that a child would purposefully push past the pain barrier and, you know, potentially cause that injury themselves. That would seem very unlikely.

In cross-examination, Dr Smith said that the minimum age of the hymenal transection was two to four weeks, but it was probably older than that because it was so well healed and there was scar at the base, so that it could have been up to two or three years old. When asked as to the possibility that the transection could have been caused by other causes than penile penetration, Dr Smith said she could not rule that out and volunteered:

but I think the most likely cause is penile penetration of the hymen, given the allegations of sexual assault and the sexualised behaviours that this girl also presented with. (emphasis added)

When asked whether she took a complete history from the complainant prior to her examination, Dr Smith was evasive. Her initial response was given in the following exchange:

Did you ask as many questions as you could of the subject thoroughly?---I'd like to just back track. I did a thorough examination. The examination is the hands on examination of the body and the genitals. In terms of the history taking from the child, at that point she'd already actually been put through quite a lengthy discussion with the DHS workers and it was evening time and so in that instance I will try to curtail the history taking for the sake of the girl. She's been through it before, it's bedtime, and I was also aware that she hadn't actually given her formal statement to the police, the video and audio taped statement to the police, and so whoever speaks to a child before that time needs to be very careful about what they talk about and the questions they ask.

It was then that counsel for the applicant put it to Dr Smith that the complainant’s mother had, in the course of giving consent to the examination, told the doctor: ‘She won’t have a hymen, she’s always poking things in there’. Dr Smith acknowledged that this had been said. It was then put to her that she should have asked further questions of the mother about that issue. Dr Smith acknowledged that, in hindsight, ‘it would have been nice to have a couple more’ questions about the issue, but said there were ‘time constraints’.

There followed a deal of cross-examination which was designed to show that the witness was partisan; and that she had not followed up an obvious line of enquiry.

The want of pertinent enquiry was summarised in these questions and answers, which also suggested a certain lack of objectivity in the doctor’s enquiries.

You didn't ask any questions of the mother and we'll confine it to her for the moment, about how many times this happened, correct?---No, I didn't.
No. How deep?---No, I didn't.
What type of objects?---No.
What thickness the objects were?---No, I didn't.
Over what period of time?---No.

Further, as stated, the doctor did not ask any questions of the complainant as to whether she had inserted any inanimate objects into her vagina. The doctor was pressed that insertion of an inanimate object could have caused the old damage to the hymen which she observed. She did not exclude the possibility, but took every opportunity, as it seems to us, to assert that her conclusion, based upon an incomplete history, was the most likely cause. Although she was prepared to acknowledge the possibility that the transection could have been caused by the complainant herself inserting an inanimate object, she volunteered that she thought that this was very unlikely, because ‘most children’ at the point of inserting an object against the hymen would experience pain and ‘at that point will back off and will not push further and cause themselves more pain’. Further, when asked to acknowledge the simple proposition that she could not rule out that the transection had been caused by the complainant’s own actions, Dr Smith did not content herself with a simple answer ‘No’. Instead, she volunteered a case: ‘I know that this finding is found much more commonly following alleged sexual assaults than a child self-inserting …’.

Although the doctor had been told by the mother that the complainant was always poking things into her vagina, she did not ask the complainant (as distinct from the mother) whether any such incident had caused bleeding.

In all, it is inescapable that – (a) the doctor’s original opinion was founded upon an incomplete history, (b) she had lost the opportunity of taking a full history, and (c) her ability to assess the prospect that there was an alternative cause of the damage to the hymen – a possibility which she conceded – was thereby compromised.

Conclusion revisited

Examination of the whole record means that the evidence favouring a finding of guilt must be given full account. That there was such evidence is not in question. We have referred to some of it. But the difficulties in the evidence of the complainant and Dr Smith to which we have referred have, in our view, very considerable cumulative impact. We see no way out of a conclusion that the reliability of the complainant’s evidence was necessarily put into substantial doubt; and that the reliability of the doctor’s opinion was also very significantly impugned.

In consequence, the jury must have had a reasonable doubt of the applicant’s guilt. So to conclude admits of the possibility that a wronged complainant will see a guilty man go free. We need hardly say that we have very carefully considered that potential consequence before reaching the conclusion which we have expressed.

It is in these circumstances that the Court should direct entry of a judgment and verdict of acquittal.

HARPER JA:

Introduction

On 31 October 2008, the applicant was found guilty by a jury of one count of maintaining a sexual relationship with a child under the age of 16 contrary to the provisions of s 47A of the Crimes Act 1958 (‘the Act’).[17] The complainant, to whom I shall refer as ‘S’, is his natural daughter. She was born in 1996. She has a brother almost exactly one year older than she is. I shall refer him as ‘B’.
[17]The name of the offence was changed by the Crimes (Sexual Offences) Act 2006. It is now ‘persistent sexual abuse of a child under the age of 16.’

Her evidence was crucial to the Crown case. But her credibility was open to attack. Support for her was, however (as the Crown asserted) to be found in the evidence of the forensic paediatrician who examined her shortly after she first complained about her father’s conduct. The applicant nevertheless contends that, even taken together, the evidence of S and the paediatrician cannot justify the verdict.

The applicant sought leave to appeal on four grounds. First, that the verdict ‘was unreasonable or cannot properly be supported by the evidence or is unsafe and unsatisfactory’. Secondly, that ‘the conviction was dependent upon the evidence of a discredited and unreliable witness, [S]’. Thirdly, that the trial judge ‘failed to correctly and adequately put the defence to the jury in the course of his charge’. And

fourthly, that the judge ‘failed to adequately and fairly direct the jury in relation to the evidence of’ a forensic paediatrician .

At the time that the relationship was allegedly in existence, between December 2003 and August 2004, the complainant was seven years’ old. She was then living with the applicant and B. Their mother was during this period living with a new partner, although for part of it all five (two children and three adults) shared the same address.

S contends that, at some point before the end of August 2004, she told her brother that her father was having sex with her. Her evidence is that B did not believe her, and that this – together with her fear of the applicant, who told her that she would be punished if she made a complaint – dissuaded her until 31 August 2004 from taking the matter further. But on that day, as she was approaching her eighth birthday, she spoke to Dr Anthony Weldon. He is a consultant paediatrician to whom she had been referred by the Department of Human Services, and who by August 2004 she had seen on some five previous occasions beginning in October 2003. She presented even then, as did B, with significant behavioural problems. Both brother and sister consulted Dr Weldon, who described them as coming from ‘what seems to have been a very dysfunctional family.’

Dr Weldon immediately informed the Department of the fact that the complaint had been made. On the same day, 31 August, S was interviewed by officers from the Department, and physically examined by Dr Andrea Smith, a forensic paediatrician. Dr Smith observed a tear in the complainant’s hymen which, according to the doctor, was not only consistent with penile penetration of the vagina, but more likely to have been caused in that way than by the suggested alternative – the insertion by S herself of an inanimate object. This was something she not only admitted to having previously done; she accepted that she had done it often.

On 2 September 2004, two days after Dr Smith carried out her examination, a VATE interview was conducted between S and Senior Constable Joanne Reiter (later Joanne McDonald), the informant in this matter. During the interview, S alleged that over a period of months from December 2003 to the end of August 2004 the applicant had on some 20 occasions engaged in penile/vaginal sexual intercourse with her. She alleged in addition that, on each of these occasions, her father had also penetrated her digitally, and on at least one other occasion had engaged her in fellatio with him.

A further interview, this time between the applicant and the informant, was conducted on 17 September. In it, he denied any sexual misconduct with his daughter. Each of the record of the applicant’s interview, and the VATE tape, were admitted into evidence at a trial in February 2008. This, however, resulted in a hung jury. A new trial was held the following October. The record of the applicant’s police interview was tendered, as was the VATE tape, which became the complainant’s evidence in chief. It was at the conclusion of the second trial that, on 31 October, the jury returned a verdict of guilty.

The crime of maintaining a sexual relationship with a child under the age of 16 cannot be proved unless the jury is satisfied beyond reasonable doubt that, on at least three separate occasions during a particular period and while the victim was under the age of 16, the accused ‘did an act in relation to the child which would constitute an offence’ against certain provisions of the Act.[18] For the purposes of the prosecution of the applicant in this case, relevant offences are sexual penetration of a child under the age of 16[19] (which includes digital and penile penetration as well as fellatio) and committing an indecent act with or in the presence of a child in that age category.[20]
[18]Section 47A(2).
[19]Section 45.
[20]Section 47.

It is not enough for the prosecution simply to call evidence to the effect that the accused engaged in a general course of sexual misconduct. Although the Crown need not prove the exact circumstances surrounding, still less the exact dates of, the acts said to constitute the maintenance of the alleged relationship, nevertheless the prosecution will fail unless the jury is satisfied to the criminal standard that each of the acts upon which the Crown relies has been identified to ‘some degree of specificity as to date, time, place, circumstances or occasion’.[21] This, so the High Court held in KRMv The Queen, is because, while s 47A(3) provides that it is not necessary to prove the acts relied upon to support the relationship ‘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 [the s 47A offence]’, nevertheless by its choice of the words in the section itself the legislature necessarily requires some specificity in that proof.
[21]KRM v The Queen (2001) 206 CLR 221, 246 [68].

The maximum penalty for the offence of which the applicant was convicted is 25 years’ imprisonment. Following a plea hearing on 8 December 2008, the applicant was on 18 December sentenced to imprisonment for a period of 12 years. The sentencing judge ordered that ten years be served before the applicant became eligible for parole.

The applicant sought leave to appeal against both his conviction and his sentence. At the commencement of the hearing of the applications for leave, however, senior counsel for the Crown informed the Court that, because the trial judge had not in his charge to the jury given any directions to it about the approach to be taken to the evidence of expert witnesses, the Crown conceded that the conviction could not stand.

That concession was properly made. The prosecution case relied heavily on the evidence of a forensic paediatrician, Dr Andrea Smith. Her evidence was challenged by the defence. It was therefore especially important that the jury be directed about the limits of admissibility of opinion evidence and about their approach, as the judges of the facts, when scrutinising it.

The remaining issue

Following the Crown’s concession, the applications for leave fall away. The appeal must accordingly be allowed. In these circumstances, the Court ‘shall quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.’[22] The question which remains is whether the Court should adopt the first or the second of these alternatives.
[22]See Crimes Act 1958 s 568(1) (now repealed and replaced by s 277of the Criminal Procedure Act 2009, but in operation at the time of trial and sentence).

In deciding between them, the Court must exercise its discretion. But it would be wrong to direct a new trial if the evidence could not support a verdict of guilty, or if other circumstances indicated that it might be unjust to require the applicant to be re-tried. As the High Court in a joint judgment (Gibbs CJ and Murphy, Wilson, Deane and Dawson JJ) said in DPP (Nauru) v Fowler:[23]

The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the appellant to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual appellant.

[23](1984) 154 CLR 627, 630.

The applicant contends that the evidence called at the trial did not meet the test of sufficient cogency. He also contends that the verdict is unsafe and unsatisfactory. In addition, he submits that, if those contentions are correct, the Court should in conformity with s 568(2) of the Crimes Act 1958 direct that a judgment and verdict of acquittal be entered.

The first point to be made is that, given the propriety of the Crown’s concession, the verdict must be set aside. In that sense it is no longer relevant to ask whether the verdict was unsafe and unsatisfactory. Rather, the emphasis should, I think, be on the question whether the evidence called at the October trial was sufficiently cogent to justify a conviction; and, if it was, whether there exist circumstances that might nevertheless render it unjust to require the applicant to be re-tried.

It is therefore necessary for this Court to examine the cogency of the evidence presented at the trial. None was called by the applicant. The principal witnesses for the prosecution were the complainant and the forensic paediatrician, Dr Smith, who examined S on 31 August 2004, the day her complaint was first made.

The focus of the defence was the credit of each of them. S, by her own admission, had a history of telling lies. Moreover, there were inconsistencies in her account of the alleged offending. For her part, Dr Smith admitted that she did not obtain as full a history of S as the defence asserted should have been obtained. The jury were also asked to accept that she lacked the impartiality required of a forensic paediatrician.

Despite these attacks on the credibility of the witnesses upon whose evidence the Crown case depended, the jury found that the applicant was guilty.

The family was peripatetic; home was often in a caravan park, and was located in a number of provincial towns before the family moved to a suburb of Melbourne. Even there, the family occupied four different addresses within a relatively short period.

The relationships between the parents, and the parents and their two children, were dysfunctional. The parents sometimes descended to violence, at least as between themselves; and while at one of the suburban addresses they separated. Neither parent was in regular work until S’s mother began as a bar attendant on the night shift at a local night club. Both parents admitted that, as parents, they fell short of being adequate. From time to time before August 2004, the children were taken away from their parents. As at that month, they were in the custody of the applicant to the exclusion of their mother. Since 1 September 2004, S has lived either with her maternal grandfather and his wife or partner (not her grandmother by blood) or in foster care, albeit with many different placements.

The case for the applicant at trial

The parental inadequacies included matters of sex. It was not just that the two children observed their parents engaging in sexual conduct on what the applicant admitted in his police interview were ‘quite a few occasions’. It was also that, although both parents noted totally inappropriate sexual contact between S and B, nothing effective was done to discourage, let alone prevent, its continuance. The applicant told the police that the behaviour in question ‘was going on day to day’; and when asked where S might have learnt it from, the applicant answered: ‘I’d say a lot of it would have come from me and [her mother]’. Not only that, but at least once S was not prevented by her mother from viewing a pornographic DVD which her mother was watching with a friend. According to the mother, S was playing with friends at the time, and this involved running through the room in which the DVD was being shown. S, however, later admitted under cross-examination that everything she alleged as having been done to her by her father was matched by the activities she had seen on the DVD. She also saw much of the same when viewing the activities of her parents.

I note in passing that, despite adopting the general position that S was a compulsive liar, the applicant seized upon her admission about the pornographic DVD as reflecting the truth. In this instance he thus, somewhat paradoxically, discounted the evidence of the mother in favour of that of the child.

In short, the defence case was that S, who generally disregarded the truth if it suited her, had in August 2004 a motive to lie about her father because, although she then lived with him, she wanted to live with her mother, from whom her father – together with S and B – were separated; indeed, by an order of a court, custody of the children had been given to the applicant. In an attempt to swap the parent with whom she lived, and to circumvent the order for custody, S used the DVD images as the foundation of her false allegations against the applicant.

By her own admission, made at the age of 12, S did not always speak the truth. The events out of which the present charge is laid allegedly occurred, however, when S was seven; and children of seven years or less barely know the difference between truth and falsehood. All the same, S may be in a rather special category. Well before the allegations about her father were made, she had been in trouble with her parents and with her school for lying. She agreed that she would sometimes say the first thing that came into her head, even though it was untrue. At the same time – as she admitted – she would do so while giving all the indicia of speaking the truth, and while expecting to be believed. Mendacity may have been one of numerous behavioural problems which led to the intervention of the Department, and then the involvement of Dr Weldon, although the doctor did not specifically refer to it when listing the disturbed behaviour with which S presented.

The applicant told the police that none of his daughter’s allegations against him were true. He denied any inappropriate contact with her whatsoever.

The credibility (or lack of it) of S as a witness

If indeed S was an inveterate liar, she was remarkably honest in admitting not only to her mendacity, but also to more general behavioural problems. The following exchange occurred in cross-examination:

Q:When you were being interviewed [for the purposes of the VATE procedure] by the police lady, do you agree with me that you are falling all over the place at various times?
A:Yes.
Q:That you weren’t sitting up straight?
A:Yes.
Q:You are moving around the room?
A:Yes.
Q:And you weren’t behaving very well, were you?
A:Yes, because it was hard to talk about it.
Q:That’s when you were 7 years of age, when you were being interviewed, correct?
A:Yes.
Q:And also, you were going to school at the same age, weren’t you?
A:Yes.
Q:At the same time, in the same year, you used to get into a lot of trouble at school for behaving like that, as you did on the video, didn’t you?
A:Yes.
Q:That you used to behave like that at school by falling around the place and not sitting up straight, correct?
A:Yes.
Q:Moving around when you weren’t supposed to, correct?
A:Yes.
Q:And you got into trouble at times about that, correct?
A:Yes.
Q:But at the same time, when you were getting into trouble for that sort of behaviour at school, I suggest at the very same time, you were getting into trouble at school for telling lies, that’s true, isn’t it?
A:Yes.
Q:That you used to tell lies when you were 7 about other kids at school, didn’t you?
A:Yes.
Q:And you used to make things up about other people which were not true, didn’t you?
A:Yes.
Q:And the teachers used to criticise you for that?
A:Yes.
Q:So as an indication of what you are doing when you were 7, I suggest at school you were falling all over the place, as we’ve seen on the video, correct?
A:Yes.
Q:And at the very same time, telling lies about people, correct?
A:Yes.
Q:Things which were not true?
A:Yes.
Q:Things which you made up about people?
A:Yes.
Q:Sometimes the first thing that came into your head, you would make up a lie, wouldn’t you?
A:Yes.
Q:And you would expect people to believe you when you made these lies up, wouldn’t you?
A:Yes.
Q:That’s right, it was all part of your behaviour when you were at that age, that’s true, isn’t it?
A:Yes.
Q:And you’d been in the habit, I suggest, at times, of just blurting things out on the spur of the moment which were not true?
A:Yes.
Q:Perhaps in fairness to you, I’ll break that up. At times, you were just in the habit of blurting things out about people on the spur of the moment, that’s correct, isn’t it?
A:Yes.
Q:And you would make things up just on the spur of the moment, wouldn’t you?
A:Yes.
Q:It would just instantly come into your head, wouldn’t it?
A:Yes.
Q:Now, you say to this Court that these things started to happen with your father when you were 7 years of age, is that true?
A:Yes.
Q:Have you ever said before that they happened at an earlier stage?
A:I think so.
Q:See, I suggest to you that once before you told a Court that these things started happening when you were 4 years of age, didn’t you?
A:Yes.
Q:That wasn’t true, was it?
A:No.
Q:No, because you can see a big difference between saying something happened when you were 7 and when you were 4, can’t you, is that true?
A:Yes.
Q:And I suggest to you that when you were in this building giving evidence in a Court proceeding in February this year, you told the Court then that these things started happening when you were 4, didn’t you?
A:I don’t know.
Q:Well, when you agreed with me before that you ….?
A:Yes, sorry.

All but three of these answers were an unqualified ‘Yes’ or ‘No’. Few witnesses are so concise. And the answer ’it was hard to talk about it’, whether true or not, is consistent with S’s allegations about her father’s sexual predations. On the other hand, there is indeed a ‘big difference’ between S saying that something happened when she was four, and then maintaining that it really occurred when she was seven. I shall return to this point.

In a statement read into evidence, Dr Weldon gave the following account of the introduction by S of her complaint against her father:

I saw [S] initially in October 2003, shortly after she turned seven … I saw her on five subsequent occasions, and on 31 August reviewed her, with her brother and her maternal grandfather … Initially I discussed [B] … and then [S], first [with] the grandfather, who told me of episodes of theft and of her nicking off from home. When I asked [S] whether there were any other issues she wanted to discuss, she started to disclose information that suggested that her father was sexually abusing her. She talked of his getting her to rub his [penis] … and then also that he put [his penis] into her mouth.
At this stage her brother … shouted that none of this was true, and [S] shouted back at him that he would not know if he’d not been there when these events took place. …
At this stage I asked [B] and the grandfather to leave the room and continued my discussions with [S] on her own. She stated that her father put his doodle in her rude parts. She said that her father does this to her on the table in his room, and when [B] is out, or when he [B] is in the shower. He also put his finger in her rude parts. I asked her how long this had been happening, and she told me that it was occurring previously when they lived in [a specified suburban street].

I asked her whether she had told anyone about these incidents, and she replied, ‘No’. I asked her why, and she stated that her father had told her not to. I asked her why she had decided to tell me about it now, and she stated this is because she did not like it, that it was wrong, and ‘I am 7 and he is 43’.

The answer to Dr Weldon’s questions – which, in effect, were why had S not told anyone before, and why now? – naturally assumed some importance at the trial. As set out in Dr Weldon’s statement, it has the ring of truth. It is just how one would expect a very young girl to respond were the allegations based on fact. The defence however maintained that it was to do with motive – with the complainant’s desire to live with her mother and the twins to whom, on 9 August that year, her mother had given birth. This, the defence contended, was the reason why S made such damaging allegations, and why she made them at this time.

In itself, there is of course nothing improper about this contention. Quite the contrary. The relevant evidence was, however, manipulated somewhat by the defence. I do not speak here about the failure to mention that, if S was telling the truth, she had a very powerful reason for wishing to disassociate herself from her father. The applicant had no duty to draw the jury’s attention to that possibility, and every reason not to do so. Rather, I have in mind the following passage from the cross-examination:

Q:Well at least for some of the time in that year that you made the complaint, in 2004, you lived with your father for some time, didn’t you?

A:       Yes.
Q:       And he looked after you on a day to day basis, that’s correct, isn’t it?
A:       Yes.
Q:But you had decided, I suggest, that in that year you would rather go and live with your mother, didn’t you?

A: Yes.
Q:And one of the things that you were particularly interested in, I suggest, is that your mother had had twin babies?

A:       Yes.
Q:       And she was living with a [new boyfriend]?
A:       Yes.
Q:You decided in your own mind that you’d rather go and live with mum and [her boyfriend] and the two babies, didn’t you?

A:       Yes.
Q:       But you believed you weren’t allowed to, didn’t you?
A:       Yes.
Q:       You liked those babies, didn’t you?
A:       Yes.
Q:       And you wanted to go and live with them, didn’t you?
A:       Yes.
Q:And you were trying to think of ways you could go and live with them, weren’t you?
A:Yes.
Q:And you knew, I suggest, that there was a problem with you deciding to go and live with mum and the babies because there was a court order saying you couldn’t?
A:Yes.
Q:You were a bit frustrated about that, weren’t you?
A:Yes.
Q:And those babies were born on 9 August 2004, weren’t they.
A:Yes.
Q:Now, even up until then, you had been going to see Dr Weldon?
A:Yes.
Q:You’d been to see him a number of times?
A:Yes.
Q:You got along well with him?
A:Yes.
Q:You trusted him?
A:Yes.
Q:And he used to ask you questions about things that were a problem for you, or troubled you?
A:Yes.
Q:So, I suggest, we can take it that, up until 9 August, you hadn’t made any complaint to Dr Weldon about your father doing rude things to you, had you?
A:No.
Q:That’s right, because, I suggest that it was only on 31 August of that year, when you went to see Dr Weldon, that you came out with this complaint about your father, didn’t you?
A:Yes.
Q:I suggest that you had seen Dr Weldon four times before 9 August, hadn’t you?
A:Yes.
Q:He’d spoken to you about your behaviour?
A:Yes.
Q:Your life?
A:Yes.
Q:Things that had upset you?
A:Yes.
Q:He discussed many problems that you had in your life?
A:Yes.
Q:And not once up until 31 August … had you said anything about your father doing rude things, had you?
A:Yes. No.
Q:You see, I suggest that it suited you to make up these things about your father doing rude things to you?
A:But I didn’t make them up.
Q:You knew that if such a thing was said to the doctor, it would have an effect, didn’t you?
A:Yes.
Q:You believed that you would be taken away from your father, didn’t you … if you said these things?
A:Yes, but it really happened.
Q:And that’s exactly what happened, isn’t it?
A:Yes.
Q:You were taken away from your father that day?
A:Yes.
Q:Correct?
A:Yes.
Q:And you got what you wanted, didn’t you. You wanted to get away from him?
A:Yes.
Q:And you went to live with somebody else?
A:Grandpa.
Q:You’d had the opportunity, I suggest, if these things had really happened, to have told the doctor before, that is before 31 August, didn’t you?
A:Yes.

I interpolate to remark that again S was admirably concise. Moreover, she accepted the proposition contained in every one of the questions put to her in that passage, save two. To those, she answered ‘But I didn’t make them up’ and ‘Yes, but it really happened’. These answers are, in their context, of particular significance. It must also be remembered that she was 12 when she gave them. In other words, she was 12 when she asserted that events which took place five years before ‘really happened’ and were not made up. She had had five years to think about these allegations. She had had five years to change her mind about them. Yet she did not.

In my opinion, a jury might properly have placed considerable importance on these answers, especially when they are set in the context of the directness with which she generally answered questions. In deciding what significance they had, a jury in any future trial would enjoy the very considerable advantage, not open to this Court, of watching S were she to repeat them.

The jury in the last trial was undoubtedly expected to accept that the second passage from her cross-examination, as quoted at paragraph [93] above, established two points relied upon by the applicant. First, that S knew that, if she made allegations of the kind she in fact made, she would be removed from her father’s custody. She agreed that she had this knowledge. It was also put that she wanted to join her mother and the twins to whom her mother had recently given birth; again, she agreed.

S was not asked, however, whether she believed that, if she alleged serious sexual misbehaviour on her father’s part, the pre-existing barriers to her living with her mother would be overcome. Which brings me back to the point that the defence based on her motive involved something of a manipulation of the evidence.

As things happened, the barriers to S joining her mother and her twin half-siblings remained. S did get away from her father. She certainly wanted that. But, for all we know from her cross-examination, that may have been all she both wanted and expected. She knew about a court order which had something to say about her mother and her custody. So her wishes may not have coincided with her expectations. And, to the extent that she wanted to live with her mother and her new half-siblings, she did not get what she wanted. She was not placed under the custody of her mother. Other arrangements were made: she was placed with her maternal grandfather. On the other hand, she may never have thought that joining her mother was a realistic option. And without evidence of the belief held by S about the reality of her ambition to live with her mother, it is not possible to conclude that the birth of the twins had a significant effect on either the motive for, or the timing of, the complaint.

It was against this background that, when being cross-examined in October 2008, S was taken to a number of her allegations, with the suggestion that they demonstrated the unreliability of the entirety of her complaints about her father’s conduct. Some do in my opinion reflect badly upon her as a witness of truth. Others are of less substance. I examine them, and other attacks upon her credit, in what follows.

It was asserted in the written submissions put by the applicant on this appeal that ‘when pressed about inconsistencies’, S ‘claimed memory loss.’ But, as the bald statement this is, it says nothing. We have all claimed a faulty memory in the same circumstances, and in doing so told the truth. In any event, it is not entirely accurate to say that S claimed memory loss whenever pressed with an inconsistency. On some occasions, she claimed confusion rather than loss of memory. On others – at least three – S unhesitatingly accepted the inconsistency without making excuses for it. One of these concerned her age at the time the (allegedly) offending behaviour began. As will be recounted later in this judgment, the others concerned her denials, each of which was later retracted, that she had inserted objects into her genitals, and that this had got her into trouble.

In her evidence in chief, after watching the VATE tape, S was asked whether there was anything she wanted to change or alter. She replied that there was not. Nor was there anything she wanted to add. When asked whether ‘[w]hat you told the police was the truth’, she said ‘Yes’. Yet during the hearing of the appeal her credit was attacked on the basis of the following exchange in cross examination at the trial:

Q:And today, even when you listened to that VATE tape, it’s difficult for you to say exactly what is wrong about it?
A:Yes.
Q:And it’s difficult for you to say exactly what is right about it isn’t it?

A: Yes.
Q:Because in giving any evidence today, particularly in relation to my questions, you’re relying upon what you heard today on the VATE tape, aren’t you, to try and remember things?

A: Yes.
Q:And in trying to rely upon what you saw and heard on the VATE tape today, some of those things that you saw and heard may be wrong?

A:       Yes.
Q:       They may be untrue, I suggest?
A:       Yes.

Cross examination along these lines can be unfair. In my opinion, it was unfair on this occasion. Counsel did not attempt to identify, or to have the witness identify, any part of the VATE evidence which was ‘wrong’ or ‘right’ or ‘untrue’. The transcript of the VATE interview occupies 27 pages. No witness, let alone a 12 year old child asked to consider, in the broad, what she said when she was seven, could be expected to instantly identify some inaccuracy, or even untruth, in a replay – a replay to which she had listened some time (eight pages of trial examination and cross examination) before her being questioned about it – of what she had said all those years ago.

Another attack on S’s credit was based on her admission, reproduced at paragraph [89] above, that she had said, at the trial held in February 2008, that the impugned activity began when she was four years old (ie in 2000/2001). According to every other account she gave, both before and after that trial, the offending first took place some time in 2003 - that is, during the eighth year of her life; and it happened at premises in which, following the separation of her parents, she lived with her father and her brother.

The discrepancy between four and seven as the starting point for the alleged offending is to an adult mind odd if S was trying to be truthful. It is not so odd if all her allegations are concoctions. It must tell against her general credibility. Yet even at seven rather than four, she was still very young; and she was 12 when she gave the false evidence. If she is correct about her father’s behaviour, it would be remarkable were the events she described not traumatic; and they happened, on her account, some five years before she gave evidence in February 2008. Young children do not have the same capacity as adults to relate events in time, because their short lives do not equip them with the perspective which only experience brings.

The next attack was directed to discrepancies in the evidence of S about the number of times ‘these things happened’. Clearly, ‘these things’ included her father’s alleged predatory behaviour; but precisely at what behaviour the questions were directed was confusingly unclear. It might have been penile penetration of the vagina, or of the mouth; or it might have been digital penetration of the vagina. Alternatively, it might have been a combination of all or some of these, because in cross-examination in October 2008, counsel failed to define either ‘these things’ or ‘it’. It was put to S that during her February 2008 evidence she said that ‘it’ happened ‘much more than 20 times’. When S spoke in the VATE interview of ’about 20 times’, however, she was clearly referring to the episodes of (alleged) penetration of her vagina by her father’s penis, because she was answering a question from Ms Reiter about the number of times ‘that Dad’s put his doodle in your rude bit’.

The significance of this challenge to S’s credit is, therefore, diminished by the circumstances in which it was made. I should add, however, to complete the picture, that when S was asked in the VATE interview how many times her father ‘put his fingers in your rude bit’ she answered: ‘Every time he done it’; and to the question ‘how many times is every time?’ she replied: ‘Every weekend.’ She was, later in the interview, reminded that ‘You said it happened every week end.’ The next question was: ‘How do you know it was every week end? She answered: ‘Because every week end [B] nicked off.’ This is roughly consistent with her telling Dr Smith, in answer to a query about how often ‘these alleged sexual assaults’ were occurring, that they happened ‘[o]n a weekend when [B] nicks off.’ This could only be consistent with the reference to ‘20 times’ if the period of offending was about 20 weeks.

Dr Smith asked S whether she had ‘ever bled anywhere on your body’. S replied with an account of an incident which, she claimed, occurred whilst her father was driving with her in a car which had been borrowed from her grandfather. As recorded by Dr Smith, S said:

Yes, when he pulled his doodle out there was this bleeding. Going up a hill in Pop’s car he pulled up at the side of the road and got on top of me. Then he took his thing out … and then he put it in this hole.

According to Dr Smith, S – who was then pointing to her genitals – went on to say:

My dad came out and seen blood on his doodle. He thought it was his, but it was mine. I checked mine, I saw blood everywhere, on the seat and on my vagina, on my pants only.

The difficulty with the account given by S is that, according to her, she showed the bloodied seat to her grandfather; but this is something which he denies. Not only that, but in court in February 2008 it was put to her that she herself had never seen ‘blood on your grandfather’s car seats’; and she replied ‘I don’t remember’. At the trial in October, she tried to explain this by saying that she could not remember then, but she could now.

This incident was not mentioned during the VATE interview, or in her examination in chief during the October trial.

In the course of his cross-examination in October, S’s grandfather was asked whether, after his car had been lent to the applicant, he saw any blood stains on its seats. He answered ‘No I did not.’ He was then asked whether S had told him that her blood was there. His response was that she said nothing of the kind.

There remains the possibility that S is right and her grandfather wrong. But an assessment of the reliability of the grandfather as a witness is impossible if one has nothing more upon which to rely than a reading of the transcript. Clearly, however, he was not always reliable – at least if one accepts that where he and Dr Weldon differ, the doctor’s version is accurate. Dr Weldon gave an account of a shouting match between S and her brother immediately after S first raised the topic of her father’s conduct. This, one would expect, would (if it indeed happened as the doctor described) stick in the mind. According to the grandfather, however, S came over to him and ‘sort of said “sexy” or something like that. … I was thinking about what [her brother] had said [about his, B’s, difficulties] and … so I didn’t actually register what she actually said. … I just sat there … and … that’s all I can recall at the moment.’

Dr Weldon also said that he asked the other two to leave so that he could speak to S alone. When her grandfather was asked at the trial whether, by the time the doctor had a conversation with S, he (the grandfather) was present, or whether he had left the room, he replied ‘Well, I was still sitting there. We sat there for a while.’

The grandfather might also have had a reason to deny knowledge of the blood in the car. If, in truth, he was told about it by his granddaughter, he should have taken some action to protect her. He, of course, did not. Doubtless he would say that the omission is perfectly explicable. He did nothing for the simple reason that he then knew nothing about her allegations.

The making of a judgment about the veracity of the grandfather is something about which the jury was much better placed than is this Court.

The next point at which the applicant made an attack upon the evidence of S has an aspect of the bizarre. The applicant once self-decorated his penis with a tattoo. There is no evidence about whether he has had any training in this field, or whether the tattoo is permanent. At all events, S was asked about her knowledge of it; and she gave conflicting evidence in response. For one thing, she drew a sketch of the penis in question during the February 2008 trial. It was in evidence both then and in October. The sketch shows marks which S described as bruises, not tattoos. And they are not depicted as tattoos.

It was put to S at the trial in October 2008 that she had not seen this tattoo. She said that she had, and when the question was put a second time, gave the same answer. It was then put to her that this question had been asked of her in February that year. She agreed that it had. She also agreed that her answer then was: ‘No, not that I know of.’ She was next asked whether, when she gave that answer, it was the truth. She replied: “I couldn’t remember, but now I do.’ The cross examination continued:

Q:When you gave that answer [in February], was that answer the truth at the time?
A:No.
Q;Is it the truth now?
A:Yes.
Q:It is, but it’s different than what he said just before, isn’t it?
A:Yes.
Q:Because before, you said that he … did have tattoos on his doodle, didn’t you, just a short time ago?
A:I got confused, yes, I did see.
Q:Sorry?
A:I did see tattoos.
Q:You did?
A:Yes.
Q:But you agree with me that in February of this year you said to that question ‘No, not that I know of’?
A:Yes.
Q:You can see a difference in those two answers, can’t you?
A:Yes.
Q:Which is the correct answer?
A:I did see tattoos.
Q:So that part of your evidence [given in February] … is now not true, is that correct?
A:Yes.

S’s mother said in her evidence that the tattoo did exist. S would hardly have claimed to have seen it unless she was certain that it was there to be seen. And her own knowledge of its existence necessarily came either from her observation, or from a second-hand source. There is no evidence of the latter. It follows that the fact her father was tattooed in this way may well have come from her observation. If it did, it is possible that the observation was made during one of the alleged assaults. On the other hand, it may, of course, have been made in quite innocent circumstances.

Although s47A(3) relieves the prosecution of the necessity to prove a relevant act with ‘the same degree of specificity’ as would be required if that act were alleged to constitute a substantive offence, there must nevertheless be ‘some degree of specificity as to date, time, place, circumstances or occasion of each relevant act’. This is so both as a matter of fairness to the accused and because of the necessity of the jury’s being satisfied as to the commission of the same three acts ...

[28][2010] VSCA 16.

[29][2010] VSCA 124 [12], quoting SLJ,[8]-[10].

The question is whether the evidence of S had the required degree of specificity. In my opinion, it did. Each act involving penile intercourse was distinctively described. So, in my opinion, were the acts of indecency and fellatio. To ask more would in my view emasculate the provision creating the offence to a point where its effectiveness would be reduced below that which Parliament intended it to have.

In this context, it is I think relevant that in interpreting s 47A the courts are to have regard to the fact that (among other things) the objective of the section is to protect children from sexual exploitation, and that sexual offences are significantly under-reported.[30] Neither purpose would be advanced were specificity to be required to the point that, although the jury might be entitled to conclude beyond reasonable doubt that an act which would constitute a relevant offence took place between the accused and the child on at least three occasions during a particular period, and although on the evidence those occasions can be differentiated one from the other, yet the degree of specificity is insufficient. As this Court said in The Queen v SLJ, the prosecution must prove, in sufficient detail to identify each ‘occasion’, the circumstances or occurrences surrounding each of the acts.
[30]Crimes Act 1958, ss 37A and 37B.

The evidence of the forensic paediatrician

I turn now to the evidence of Dr Smith. Her task on 31 August 2004 had a narrow focus. She was to examine S for physical signs of sexual penetration. Its purpose was forensic. She had a duty of impartiality, and therefore a duty of indifference: she was not to be concerned whether the results of her investigation supported the prosecution or the defence.

The importance of the history of a patient will vary according to the medical issue with which the medical practitioner is concerned. Those limits are significant in this case. Dr Smith was not S’s treating doctor, and was not concerned with anything more than an examination of her genitalia. The significance of the complainant’s medical history must be seen against these circumstances. The examination would either show signs of penetration, or it would not. If it did not, Dr Smith had a duty to report accordingly; and her involvement would then cease. If it did, it was Dr Smith’s task to ascertain whether those signs were consistent with penile penetration, or penetration of some other kind, or both. Each of these possibilities must have been apparent to Dr Smith before the examination began, and without the need for an extensive history in order to bring them into focus.

Nothing which occurred during the trial throws doubt on these propositions. It is nevertheless significant that, before Dr Smith examined S, she spoke to S’s mother. Dr Smith was then told that ‘she [S] won’t have a hymen, she’s always poking things in there’.

This was a remark the implications of which, it seems to me, Dr Smith ought to have explored more thoroughly than she did. The issues with which Dr Smith was particularly concerned were twofold: first, whether there were any signs on a physical examination consistent with S’s genitalia having been subjected to penetration; and, secondly, if there were, by what. A history of self-insertion by inanimate objects would necessarily be relevant when considering the second question.

In fact, there was no challenge to Dr Smith’s evidence, given in chief, that on examination of S, she found:

... an old, complete transection at 6 o’clock on the hymen. It had extended to the base of the hymen and there was a scar in the vaginal wall, at the base of the transection. … [T]he hymen would normally have a continuous free edge, and in this instance there was a split at 6 o’clock so that the edge then went into a V shape, and the transection was complete, so that means it reached the floor of the virginal wall. … The transection was a healed, old transection. By saying that, I mean it was the flesh coloured colour of the hymen. There was … no evidence of acute injury such as redness, bruising, bleeding on that transection. And so given that it was relatively well – was well healed, I would estimate that it’s at least two to four weeks of age, but it could be older than that, easily.

Given that this evidence was not challenged, the Crown must be taken to have established that S had been subjected to genital penetration. The question then became: by what? Dr Smith gave her answer in response to the prosecutor asking what the position of the transactional injury suggested medically. She replied:

It’s a very significant genital finding – the 6 o’clock position, or we call it the posterior part of the hymen, which is from 3 o’clock through to 9 o’clock, particularly between 4 and 8, that’s the part of the hymen that’s most vulnerable, particularly in or during episodes of penile penetration of a vagina. So the 6 o’clock position is part of the most vulnerable section, and it’s because the way the penis scoops into the vaginal vestibule, it often abuts the hymen on the way into the vagina.

Again, there was no challenge to this evidence. Dr Smith continued:

So to find a finding like this in a young girl without any allegations of sexual assault is actually very concerning for sexual assault, and with allegations of sexual assault it obviously supports her allegations of sexual assault.

Dr Smith was next asked by the prosecutor about a suggestion that implements like a spoon or a fork might have been put into the vagina passage, and whether it was common or uncommon for children to experiment in that way. Dr Smith answered:

It’s very common for younger children to discover their genitals and have a poke around … It’s a little more unusual that a child of seven is inserting objects into her genitals. When I say genitals … it may be just into her vulval area and I would suggest that most children would only insert objects into their vulval area which is the vaginal vestibule part of the genitals. I think fewer children would insert an object beyond the vaginal vestibule through the vaginal opening into the vagina. So a child of seven inserting objects into their genitals would raise concerns that that child has been exposed to sexual explicit information. Be that watching adults partake in sexual acts or watching adult pornography or perhaps being sexually assaulted themselves.

It is not surprising that the next question was about the pain which might be caused by such activity. Dr Smith said about this:

If the seven year old girl’s inserting them herself … there will be a little bit of discomfort in the vaginal vestibule but we know that the hymen itself is actually quite a sensitive piece of tissue and that’s why we avoid … touching it during an examination particularly in pre-adolescent girls. So … if the little girl was to push a toy in and it abutted the hymen then it would cause some discomfort particularly with stretching the hymen. So the more stretch … you would … think that there was more pain. At that point most children would actually stop and pull out the toy.

In my opinion, all of this is unremarkable. But, in the light of the comment made by the mother of S to the effect that S would not have a hymen because she was always poking things into her genitalia, it was surely relevant to ascertain whether in the case of this complainant an explanation other than penile penetration was open.

Counsel for the applicant took the point. He suggested to Dr Smith ‘that there may be another explanation for the damage to the hymen.’ The witness responded:

The mother told me that this child had inserted objects into her genitals. I then later asked her whether she was aware of whether her child had had any genital bleeding or bruising, and I specifically allowed a little space in the questioning for that to be removed from that comment that she made, and she told me that she was not aware of her daughter having any genital bleeding or bruising. By asking those questions, I was inferring, ’Are you aware of any injuries to her hymen?’, so my point is that this child had a transection and it was very likely to have caused bleeding. This mother told me that she wasn’t aware of her child having any bleeding, so that tells me that she wasn’t made aware of when this transection occurred, or how it occurred.

Dr Smith commented further about the likelihood that the injury she observed would have been accompanied by bleeding from the wound. She said:

I would be very surprised if there was not bleeding that resulted from that transection. It was a large transection and it extended down to the vaginal wall. So I would think there is a very high degree of the chance that there was bleeding and probably quite significant bleeding. I can’t absolutely exclude that an object didn’t cause that transection. I would think it unlikely that a child would purposively push past the pain barrier and … potentially cause that injury themselves. … Everybody’s pain thresholds are different, but it would be reasonable pain, I would imagine, to most children and certainly I’ve seen a number of adolescents with acute transections who have just been sexually assaulted in the hours before and they’re very tender. Again we try to avoid touching those transections and they’re in often quite a lot of pain.

No criticism can properly be made of Dr Smith to this point. Not having observed any relevant bleeding, the mother of S could not further assist in the answer to the question whether her daughter herself caused the injury to the hymen as observed by Dr Smith. As the doctor made clear in the extracts from her evidence set out above, evidence of the insertion of objects into the vulva is by no means necessarily evidence of penetration into the vagina itself, and thus into the region in which the hymen is to be found.

But if the mother had not observed any bleeding, S would have done – were there any bleeding to be observed. Yet this question was asked of S only in general terms: ‘Have you ever bled anywhere on your body?’ The question produced an account of an episode in a car driven by the applicant in which S was a passenger. According to S, her father pulled over, and then penetrated her vagina with his penis. The result, she said, was her blood being deposited on the car seat and in her underwear. Asked (in Dr Smith’s words) ‘again … about the bleeding’, S ‘said it happened once in the car and five times at home.’ It seems that Dr Smith simply assumed that by ‘it’ S was in each case referring to bleeding accompanying penile penetration by her father. In my opinion the doctor ought to have asked whether any of the bleeding episodes followed the insertion of an object other than a penis.

It might be argued that this omission is not of great significance. First, the answer would surely have been in the negative. Dr Smith stressed that children do not usually injure themselves in this way, and in my opinion she must be believed on that point. Ordinary experience endorses the proposition that children of seven or younger, as S was, simply would not inflict upon themselves the pain which would inevitably accompany such an invasion of that part of the body.

The second reason why the answer might arguably be said to be of little significance is that, whether in the affirmative or not, it would not necessarily assist the applicant. Even had it been in the affirmative, it would have raised concern (at least in the mind of Dr Smith, but her position is one which could well have been shared by a jury) that such unusual behaviour was itself a reaction to S having being a victim of sexual assault.

In the context of a criminal trial, however, this argument fails. There must be a possibility, remote perhaps but a possibility nevertheless, that S would if asked have told Dr Smith that her admitted self-insertion of objects into her genitalia did on one occasion or more result in bleeding or bruising. The implications to be properly drawn from that admission could then have been explored with the assistance of expert evidence, and considered thereafter by the jury. But Dr Smith’s failure to ask the question had the result that an issue relevant to the guilt or otherwise of the applicant was not explored as it should have been. Had S admitted having caused herself to bleed, and had the jury been given that information, the likelihood of a verdict of not guilty may have been significantly increased.

Of course, counsel could have asked the question themselves. But neither did. Counsel for the applicant might have made the deliberate decision to refrain from doing so for fear of the answer – a legitimate forensic position for him to take. What was not, in my opinion, so easily justified was his undiscriminating attack on Dr Smith for not taking a proper history from S. In my opinion, the only line of questioning Dr Smith ought to have pursued but did not was that relating to any injuries which might have been caused by self-insertion of inanimate objects. Counsel was not so confined in his attack on her.

It began with the first questions put to the doctor in cross-examination. In her evidence in chief, Dr Smith had said that the injury she observed to the hymen was ‘at least two to four weeks of age, but it could be older than that, easily.’ Counsel for the applicant in his fourth question to her said: ‘So in addition to the range you’ve given to the jury in your evidence in chief of two to four weeks, it [the injury] could be much older?’ Dr Smith responded that this (two to four weeks) was the minimum age. Counsel then asked: ‘So what you were doing in your evidence in chief was actually giving them [the jury] a minimum were you?’

These questions misrepresented Dr Smith’s earlier evidence. Given the general tenor of the cross-examination, it is a fair inference that they were also hostile in tone. The witness may have been thereby unfairly put on the defensive, and this may partially explain other answers which on their face throw a doubt upon her impartiality.

Such doubt is inevitable. It may in the end be unjustified, but in the end we will never know. We can only observe that it is not helpful for a forensic expert to speak of a desire that the principal Crown witness give evidence which is ‘crisp’; or that ‘given the allegations of assault’ (and ‘the sexualised behaviours that this girl also presented with’) the likely cause of injury to the hymen is penile penetration.

Dr Smith gave evidence which was intended to support not only the conclusion that the history she obtained was adequate for her purposes, but also the validity of her explanation for her failure to seek further information. In my opinion, for the reasons I have given, this explanation was inadequate. In these circumstances, the trial judge ought in my opinion to have brought the jury’s attention both to this inadequacy, and to the fact that its implications had not been explored in the evidence to the extent required to provide adequate assistance to the jury in its consideration of that point; but the burden of proof being on the Crown, any deficiency in that respect rebounded on the prosecution, not the defence.

It was also necessary for the trial judge to direct the jury about the approach it must take to the assessment of evidence given by experts. His Honour’s failure to do so may have induced the jury to give greater weight than otherwise they would have given to Dr Smith’s opinion about the cause of the tear to S’s hymen.

For these reasons, ground 4 of the applicant’s grounds of appeal – that his Honour failed to adequately and fairly direct the jury in relation to the evidence of Dr Smith – has been made out.

The resolution of the principal issue

I return to the principal issue in this case: whether this Court should direct a judgment and verdict of acquittal to be entered, or direct a new trial to be had. And the answer to that question depends upon the Court’s answer to the question whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction. If it was, the court must then take into account any circumstances that might render it unjust to the appellant to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual appellant.

In deciding whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, a court of appeal must ask itself:

…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.[31]

[31]M v The Queen (1994) 181 CLR 487, 493.

It seems clear enough, then, that two considerations, neither of which may be discounted, still less disregarded, must be taken into account: first, that the jury is the body entrusted with the primary responsibility of determining guilt or innocence; and, secondly, that it is the jury, and not this Court, that has had the benefit of having seen and heard the witnesses. It is against this background that the following passage from the majority judgment in M v The Queen must be read:

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 has 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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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.[32]

[32]M v The Queen (1994) 181 CLR 487,494-495 (emphasis supplied).

It is not easy at a first reading of this passage to discern any place for the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence. Indeed, in Jones v The Queen,[33] Brennan CJ distanced himself from the majority judgment in M v The Queen on the basis that:

[T]he function of a court of criminal appeal is prescribed by statute and the statute is founded on the principle that the jury, not the court, is the constitutional arbiter of guilt. An equation between a reasonable doubt entertained by a court of criminal appeal and a doubt which ought to have been entertained by a reasonable jury is valid only if the capacity for evaluating the cogency of a witness's evidence and the worldly wisdom of a court of criminal appeal are no less than the collective endowments of a jury. Those skills are as material to the propriety of a verdict as the advantages of seeing and hearing witnesses and sensing the atmosphere of a trial. It is a basic assumption of the criminal process that those skills are not equally shared by judges and juries. Exceptionally, judicial experience is sometimes accorded greater weight than the experience of a jury, in which case a trial judge is required to give the jury a warning that alerts them to what judicial experience has shown. Otherwise the courts accept the jury as the possessor of both the skills and the advantages that are required to reach a proper verdict. In my respectful opinion, any contrary approach denies the importance of trial by jury and is inconsistent with the constitutional function which the jury performs.

[33](1997) 191 CLR 439, 442.

I find his Honour’s reasoning compelling. Nevertheless, there may not now be, if there ever was, any discernible practical difference between the two approaches. For one thing, if the jury is the body entrusted with the primary responsibility of determining guilt, it is because it is the constitutional arbiter of that issue; and that, in turn rests upon the jury’s collective endowments, which have not been equally conferred upon a panel of judges. For another, the application of the several tests does not lead to a uniformity in their several results. Thus, for example, in M, Gaudron J adopted the test of the majority, but came to what was, in part, a different result; while in Jones, Brennan CJ adhered to the test he expounded in M, yet agreed with the majority (Gaudron, McHugh and Gummow JJ) - who not only re-affirmed the formulation of the test as expressed in the earlier case by Mason CJ and Deane, Dawson and Toohey JJ, but declared that (the then) Brennan J had himself then agreed with it.

M v The Queen was considered by the High Court in Libke v The Queen.[34] In the latter case, Hayne J (with whom Gleeson CJ and Heydon J agreed) accepted that, as was held by the majority in the former, the question for an appellate court in the relevant circumstances is whether it is open to the jury to be satisfied of guilt beyond reasonable doubt. Hayne J continued:

… which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[35] 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.[36]

[34](2007) 235 ALR 517.

[35]Citing M v The Queen (1994) 181 CLR 487, 492-3 (Mason CJ, Deane, Dawson and Toohey JJ).

[36]See also R v Tiburcy [2007] VSCA 124, [17] (Vincent JA) and The Queen v Nguyen [2010] HCA 38 [33]; (2010) 85ALJR 8 [33].

In my respectful opinion, this is a helpful addition to the passage from M to which Hayne J referred. I therefore agree with Ashley J, as his Honour said in Rodi v The Queen,[37] that the majority judgment in M is compatible with that which was said by Hayne J in Libke. Indeed, I agree with the proposition to be found at [24] of the judgment of Ashley JA and Hargrave AJA in this case. I would only effect a minor modification. I would add to that paragraph the words in italics, which reflect the judgment in Libke, and which when added cause the paragraph to read:

It is important to remember the question is not whether there was any evidence at trial which would support a conviction; but whether, on the whole of the evidence adduced, the jury must - not might - have had a reasonable doubt as to the accused’s guilt. The fact that the answer to the first question will be ‘yes’ does not mean that the answer to the second question must be ‘no’.

[37][2011] VSCA 48, [19].

In The Queen v Nguyen[38] the High Court has again stated that courts of criminal appeal must neither disregard nor 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. In my opinion that factor must, therefore, be encompassed by the injunction, to be found in the passage from M v The Queen quoted above, to make ‘full allowance for the advantages enjoyed by the jury’. It follows, it seems to me, that the Court must allow fully for the qualities which juries are expected to bring to their role as the tribunal of fact in a criminal trial: namely, the knowledge of life and of the world, the common sense, and the sense of justice, of 12 members of the community sworn to return a true verdict according to the evidence. If this is right, then a court of criminal appeal should in my opinion come with diffidence to the conclusion that, despite a verdict of guilty, a reasonable jury must have experienced a reasonable doubt about the evidence of a child who, while readily admitting faults, including faults going to her credit, persisted with her allegations, and whose evidence was in a crucial respect supported by that of a forensic paediatrician.
[38][2010] HCA 38 [33]; (2010) 85 ALJR 8 [33].

The fact is that three, or even five, judges of appeal cannot replicate, certainly not fully, the advantages of 12 members of the community selected at random and pledged to return a true verdict according to the evidence. In the vast majority of cases, this will not be a matter of particular moment. But that is not this case. Here, this Court is faced with the prospect of assessing the credibility of a female child in particularly difficult circumstances. First, when in 2003, at the age of seven, she gave a VATE interview. Then secondly when, aged 12, she was required in cross examination in 2008 to recall the events which she had recounted during that interview five years before. Faced with these difficulties, a recognition of the distinction between tribunals of fact (this Court on the one hand and the jury on the other) may be crucial if the Court (a) is neither to disregard nor discount the consideration that it is the jury which is entrusted with the primary responsibility of determining guilt, and (b) is also to make ‘full allowance for the advantages enjoyed by the jury’. It is not only that the jury will have seen and heard each witness, while this Court has not. It is also that the jury will have brought to the task of assessing that evidence that which this Court cannot: the wisdom, the common sense, the experience of life, and the sense of justice, of 12 members of the community, all of whom have taken an oath or made an affirmation to return a true verdict according to the evidence. They will necessarily look at the evidence of the child through a wider lens than is available to the Court.

In TheQueen v Klamo,[39] Maxwell P, with whom Vincent JA agreed (Neave JA, in a concurring judgment, did not deal with the point) held that a guilty verdict can 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 other words, the question posed in M v The Queen,[40] namely,

Was it open to the jury to be satisfied beyond reasonable doubt that the accused was guilty?

requires a court of criminal appeal to decide whether the state of the evidence was such as to preclude a jury, acting reasonably, from being satisfied of guilt to the requisite standard. To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’[41] or whether, instead, the ‘path to a conviction was open’. [42]

[39](2008) 18 VR 644, 654 [40].

[40](1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).

[41]R v Shah [2007] SASC 68, [4] (Doyle CJ).

[42]Morabito v R [2007] NSWCCA 126, [34] (Mason P).

In my opinion, when M v The Queen is considered in this way, both of the two elements of advantage enjoyed by the jury - that it is the body entrusted with the primary responsibility of determining guilt, and that it has also had the benefit of having seen and heard the witnesses - may be accorded their due. I would respectfully adopt the passages quoted above from Libke v The Queen, and from The Queen v Klamo.

The result, it seems to me, is nevertheless that, in the unusual circumstances of this case, this Court ought to direct that a verdict of acquittal be entered.

This decision has been reached only after much anxious consideration. If one were to have regard only to the evidence put before the jury, I think that the proper assessment is that it was sufficiently cogent to justify a conviction. My reading of the transcript of the complainant’s cross-examination enables me to feel comfortable with the jury’s acceptance of the truth, beyond reasonable doubt, of her central allegations. I am also of the opinion that, on the evidence before them, the jury was entitled to accept Dr Smith’s evidence that the hymen was torn, and that that tear was most likely to have been caused by penile penetration.

When, however, one adds to these considerations (i) the failure of Dr Smith to ask S about any association between the latter’s insertion of objects into her genitalia and bleeding from that region of her body, and (ii) the failure of the trial judge to direct the jury on the proper approach to expert evidence, the route to the ultimate conclusion to which I have come becomes relatively clear. The second step as expounded in DPP (Nauru) v Fowler - that the Court take into account any circumstances that might render it unjust to the applicant to make him stand trial again - leads me squarely to the result that injustice would accompany an order that the applicant be tried for a third time.

For these reasons, I would order that a verdict of acquittal be entered.

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[2011] VSCA 142

16 May 2011