Cavanaugh (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0154

LARRY CAVANAUGH (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

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

---

JUDGES:	MAXWELL P, KAYE and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2021
DATE OF JUDGMENT:	13 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 347
JUDGMENT APPEALED FROM:	[2020] VCC 1946 (Judge Dawes)

---

CRIMINAL LAW – Appeal – Conviction – Applicant convicted of ten charges of incest and five charges of indecent act with a child under 16 years – Whether jury verdicts unreasonable or could not be supported having regard to the evidence – Offences committed against applicant’s stepson over eight year period – Prosecution case based on complainant’s evidence – Direction given to jury pursuant to Liberato v The Queen (1985) 159 CLR 507 – Relevant witnesses deceased at time of trial – Significant forensic disadvantage direction given to the jury – Applicability of rule in Browne v Dunn (1893) 6 R 67 to criminal trials – Leave to appeal granted – Appeal dismissed – Criminal Procedure Act 2009 s 276(1)(a), Jury Directions Act 2015 ss 39, 44I, 44L, 52, 53, 54D, 64 – Pell v The Queen (2020) 268 CLR 123, MWJ v The Queen (2005) 222 ALR 436 considered.

CRIMINAL LAW – Appeal – Procedure – Application for extension of time to file application for leave to appeal against conviction – Significant delay – Delay largely caused by applicant’s previous counsel – Applicant made prompt and timely efforts to commence appeal – Ground of appeal arguable – Extension granted – Bolton (a pseudonym) v The Queen [2021] VSCA 117, Bolton (a pseudonym) v The Queen [2021] VSCA 237.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Matthews	Slades & Parsons Solicitors
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the respective reasons for judgment of Kaye JA and Walker JA.

For the reasons given by Kaye JA, I would grant the application for an extension of time within which to file the application for leave to appeal against conviction. I would, however, wish to reinforce what was said by this Court in Bolton[2] about the obligation of legal practitioners to ensure that time limits for the filing of applications in this Court are complied with.
[2]Bolton (a pseudonym) v The Queen [2021] VSCA 117; Bolton (a pseudonym) v The Queen [2021] VSCA 237.

As Niall JA said in the first Bolton decision:

The delay … was explained by the workload of counsel. In my view, that is a weak reason to justify an extension of time. Given the existence of time limits, it was incumbent on counsel to take steps to finalise the material in a timely way or, if that was not possible, to return the brief. In this context, it is not possible to exonerate entirely either the applicant or his solicitors. The solicitors had an obligation to act in the best interests of their client. Faced with the inordinate delay, steps should have been taken to have documents prepared or, if that were not possible, the brief returned.[3]

[3]Bolton (a pseudonym)v The Queen [2021] VSCA 117, [18].

The point was reiterated by Kyrou and Kennedy JJA in their subsequent decision in Bolton:

The applicant’s initial appeal counsel should have returned the brief immediately upon realising that he could not prepare the appeal documents in a timely manner. And the applicant’s solicitors should have pressed initial appeal counsel to prepare the appeal documents in a timely manner and to withdraw the brief and engage new counsel as soon as it was apparent that initial appeal counsel could not do so.[4]

[4]Bolton (a pseudonym) v The Queen [2021] VSCA 237, [22].

The Court was informed by counsel for the present applicant that, as a result of those decisions, ‘the message has been heard loud and clear in the profession’ and ‘the cultural shift has happened’. Given the serious detriment which delay of this kind can cause to those whose interests are affected by a criminal appeal, it is very

much to be hoped that that is so.

As to the substantive application, I agree with Walker JA that leave to appeal should be granted, but the appeal dismissed for the reasons which her Honour gives.

KAYE JA:

The applicant was initially charged on an indictment that contained thirteen charges of incest, and six charges of committing an indecent act with a child under sixteen years. The offences were alleged to have occurred between 25 February 2001 and 24 February 2009. In 2001, the applicant commenced a relationship with the mother of the complainant, who was then eight years of age. Subsequently, in 2003, the applicant married the complainant’s mother.

On a trial in the County Court, directed acquittals were entered in relation to three charges of incest, on the ground that the acts of penetration, on which they were based, were alleged to have occurred before the applicant married the complainant’s mother. The jury retired to consider its verdict on Friday 23 August 2019. In the course of its deliberations it was given a majority verdict direction. The jury was unable to reach verdicts on any of the remaining sixteen charges, and on Tuesday 27 August 2019 it was discharged without verdict.

At the retrial, which commenced on 14 October 2019, the applicant was charged on a new indictment with ten charges of incest and six charges of committing an indecent act with a child under sixteen years. On 21 October 2019, the jury returned guilty verdicts on the ten charges of incest and on five charges of indecent act with a child under sixteen years. A not guilty verdict was returned on one charge (charge 13) of indecent act with a child under sixteen years.

On 22 November 2019, the applicant was sentenced to fifteen years’ imprisonment with a non-parole period of ten years and six months. He seeks leave to appeal the convictions on the sole ground that the jury’s verdict in relation to each

charge on which he was found guilty was unreasonable or could not be supported having regard to the evidence.

The notice of application for leave to appeal against conviction was not filed until 9 August 2020, some seven and a half months after the time fixed for the filing of such an application. Accordingly, the applicant has filed an application for extension of time within which to file the notice of application for leave to appeal against conviction. It is convenient to deal, first, with that application.

Application for an extension of time

The application for an extension of time is supported by an affidavit of the applicant’s solicitor and an affidavit of the applicant’s counsel, who, it should be noted, is not the member of counsel who appeared on the hearing of the application.

Upon being convicted, the applicant instructed his solicitor that he wished to appeal against his conviction on all charges. Following his sentencing, he maintained his instructions. During the period of 28 days after sentencing, the applicant’s solicitor held a number of conferences with him, in which the applicant instructed that he wished to privately fund the appeal, and that he did not wish to apply for a grant of legal assistance with Victoria Legal Aid. The applicant also instructed that he wished to brief new counsel.

On 18 December 2019 (still within the appeal period), trial counsel completed a memorandum of advice recommending that the applicant should appeal against conviction only. The applicant instructed his solicitor that he wished to proceed in that way. On 23 December, he signed a costs agreement and disclosure statement and emailed them to his solicitor’s office. However, the solicitor was absent on leave until 13 January 2020. On his return, he had a conference with the applicant in which they discussed funding for the appeal. The solicitor then contacted counsel who was then briefed for the appeal proceeding, and forwarded to him a copy of trial counsel’s memorandum.

During February and March 2020, the applicant’s solicitor held three conferences with the applicant relating to the funding of his appeal. On 13 March and 16 March 2020, the applicant’s partner made deposits into the solicitor’s trust account for that purpose. Accordingly, on 18 March 2020 the solicitor briefed counsel to prepare written grounds of appeal and to appear on the appeal hearing.

It is apparent that the subsequent delay, between that date and the filing of the notice of application for leave to appeal on 9 August 2020, was due to delay on the part of counsel who was then briefed on behalf of the applicant. In his candid affidavit in support of the application, that counsel has stated that he is ‘solely responsible’ for the length of the delay since he was briefed in the matter, and that the delay is entirely his fault. Counsel explained that during that period he had particularly heavy work commitments which involved a substantial amount of time and work on his behalf. Counsel has outlined those commitments in his affidavit. He has ‘frankly’ stated that he found it difficult to decline briefs, and he was conscious of his obligation to attend to each of them in a timely manner.

In opposing the application for an extension of time, counsel for the respondent has submitted that the explanation for the lengthy delay of almost nine months is ‘unacceptable and should be discouraged’, as the administration of justice demands adherence to the time limits. Counsel also submitted that the appeal is without merit and therefore the extension of time should be refused.

The principles, that apply to an application for an extension of time, are well settled. The Court has a broad discretion whether to grant such an extension, which is principally informed by the requirements of the interests of justice in the case. In determining an application, the Court takes into account relevant circumstances that include the length of the delay, the reasons for the delay, and the prospects of success of the proposed appeal.[5]
[5]See, eg, Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

In the present case, the delay was particularly lengthy. However, it is clear that, from the outset, the applicant wished to appeal against his conviction, and gave instruction to his solicitor that he intended to do so. The applicant, who was then in prison, made appropriate and timely efforts to ensure that sufficient funds were provided to the solicitor to enable the appeal to proceed. The substantial part of the delay was due to counsel, who was then briefed in the matter, undertaking an excessive workload on other cases which precluded him from attending to the brief that he had been sent to prepare appeal documents on behalf of the applicant. None of that delay can be attributed to the applicant. Further, for the reasons that I shall discuss, it is clear that the substantive application for leave to appeal against conviction is arguable. The charges against the applicant, on which he was convicted, were particularly serious. Upon his conviction, he was sentenced to a lengthy period of imprisonment, reflecting the gravity of the alleged offending. In those circumstances, it is appropriate, and in the interests of justice, that this Court review, by way of leave to appeal, the applicant’s conviction on those charges.

Accordingly, the application for an extension of time should be granted.

Circumstances of offending

The complainant was born in February 1993. He is the eldest of two children, his sister being five years younger. His parents’ relationship broke down when he was eight years of age.

Subsequently, the applicant commenced an intimate relationship with the complainant’s mother in 2001. They married in November 2003. The applicant’s daughter, the complainant’s half-sister, was subsequently born in 2005.

The charges against the applicant arose out of ten separate incidents. The first incident occurred when the complainant, who was then eight years of age, accompanied the applicant to mow the lawns at the applicant’s mother’s house in Oakleigh. After the lawns were mowed, the applicant took the complainant into his old bedroom and removed his own trousers, exposing his penis. He told the complainant to take hold of his penis which the complainant did (charge 1 — indecent act with a child under 16). The applicant also touched the complainant’s penis, rubbing it up and down (charge 2 — indecent act with a child under 16). The applicant told the complainant to put his mouth onto the applicant’s penis. The applicant put his penis into the complainant’s mouth (charge 3 — incest). The applicant then instructed the complainant to remove his clothes and lie face down on the bed. When the complainant was in that position, the applicant lay on top of him and inserted his penis into the complainant’s anus (charge 4 — incest). The penetration continued until the applicant ejaculated.

The second incident occurred about one month later when the complainant again accompanied the applicant to the applicant’s mother’s house to mow the lawn. After the lawn had been mowed, the applicant again took the complainant into his old bedroom. The applicant produced a purple dildo which he used to penetrate the complainant’s anus (charge 5 — incest). The applicant then removed the dildo and inserted his penis into the complainant’s anus (charge 6 — incest). The penetration ceased when the applicant ejaculated.

The third incident occurred in 2002 after the applicant, the complainant’s mother, and the children had moved into a new residence in Oakleigh South. On that occasion, the complainant’s mother and sister went shopping. The complainant was playing with toys in his room. The applicant entered the room and started to touch the complainant’s penis outside his clothing. He then removed the complainant’s trousers and rubbed his penis up and down (charge 7 — indecent act with a child under 16). As he did so, he told the complainant to rub his penis up and down to the point of ejaculation (charge 8 — indecent act with a child under 16).

The fourth incident occurred when the complainant was ten years of age. During that time, the complainant and the applicant attended karate classes in Oakleigh. On one evening, when the applicant drove the complainant home from karate, the applicant parked the car near a VicRoads office. He told the complainant to give him oral sex and said he would give the complainant a chocolate bar. The complainant took hold of the applicant’s penis and rubbed it up and down (charge 9 — indecent act with a child under 16). He then put his mouth over the applicant’s penis, and gave the applicant oral sex until the applicant ejaculated (charge 10 — incest).

The fifth incident also occurred when the complainant was ten years of age. On that occasion, while the applicant was driving the complainant home from karate, he stopped in another area. The applicant offered the complainant money in exchange for the complainant performing oral sex on him. The complainant put his mouth over the applicant’s penis and moved his head up and down until the applicant ejaculated (charge 11 — incest).

The next incident (the sixth incident) occurred on the night before the applicant married the complainant’s mother in November 2003. On that night, the applicant, a friend DS, and the complainant stayed at the applicant’s mother’s house in Oakleigh. The applicant, the complainant and the friend slept in the same room. While the friend was asleep, the applicant asked the complainant to give him oral sex and promised to give him a chocolate bar. The complainant took hold of the applicant’s penis, and put it inside his mouth (charge 12 — incest). The applicant ejaculated.

The seventh incident concerned charge 13 (indecent act), on which the applicant was acquitted. The complainant did not give any evidence of that incident. His sister JT, who was then either four or five years of age, said that she happened to observe the complainant and the applicant naked in the bathroom, with the complainant bent over and the applicant thrusting against his anus.

The eighth incident occurred in 2006. On that occasion, the applicant was in the lounge room with the complainant. He inserted his penis into the complainant’s anus (charge 14 — incest). The complainant’s half-sister JH, who was then about twelve months old, was the only person who was home at the time.

The ninth incident took place when the family visited Rye for a summer holiday in December 2007. The incident occurred when the complainant’s mother took his sisters shopping. While they were out, the applicant offered the complainant fifty dollars in exchange for oral sex. The applicant went into his bedroom and sat on the edge of the bed. The complainant was on his knees on the ground. The applicant told the complainant to grab his penis. The complainant rubbed the applicant’s penis and then put it in his mouth, where it remained until the applicant ejaculated (charge 15 — incest). The applicant then gave the complainant fifty dollars.

The last (tenth) incident occurred when the complainant was fifteen years of age. On that occasion the applicant and the complainant had visited Southland to see the movie ‘Iron Man’. When they returned home, no-one else was there. The applicant took the complainant into his bedroom. The complainant was on his hands and knees on the bed. The applicant inserted his penis into the complainant’s anus in a forceful manner (charge 16 — incest).

The tenth incident was the last incident. The complainant in his evidence stated that by then he had gained sufficient confidence to resist the applicant. Subsequently, in November 2011, the applicant and the complainant’s mother separated, with the applicant leaving the home. The complainant first made any complaint about the applicant’s conduct in 2013 when he told his girlfriend WA. Subsequently, on or about 26 January 2015, the complainant told his mother that the applicant had raped him since he was eight years of age.

The applicant was arrested and interviewed on 22 April 2015. He exercised his right to give a no comment answer to questions put to him.

Summary of evidence

The principal witness for the prosecution was the complainant. He gave evidence substantially in conformity with the prosecution case.

The complainant stated that his parents separated when he was eight years of age. The relationship between the complainant’s father and his mother was never good. His father, a violent drug addict, was hardly ever at home.

The complainant stated that he first met the applicant when he was four years of age. The applicant was then a friend of the family. After the complainant’s parents separated, the applicant commenced a relationship with the complainant’s mother and moved in with them in their home in East Bentleigh. At that time the complainant had a good relationship with the applicant. He looked up to the applicant as a father figure and a role model. However, sometime after the applicant moved in, the relationship between him and the complainant radically changed, in circumstances in which the applicant sexually abused and raped the complainant when he was between the ages of eight years and sixteen years.

The complainant then gave evidence as to each of the incidents which have been summarised above.

The first incident (which is the subject of charges 1 to 4) occurred when he was eight years of age. The complainant accompanied the applicant to the applicant’s mother’s (JK’s) house in Oxford Street, Oakleigh in order to mow her lawn. When they had finished mowing, they went into the house and into the applicant’s old bedroom. The applicant removed his clothes and showed the complainant his penis, which looked ‘massive’. The applicant told the complainant to take hold of his penis, and, accordingly, the complainant grabbed it and ‘yanked’ it up and down. The applicant took hold of and rubbed the complainant’s penis. The complainant then put his mouth on the applicant’s penis and imagined that it was a lollipop. The applicant then told the complainant to remove his clothing and to lie on the bed face down. When the complainant did so, the applicant got on top of him. The complainant could feel the applicant’s penis moving inside and out of his anus, and he felt sperm inside his anus. The complainant said that he felt pain and agony and he screamed as loudly as he could. He said he did not want to do it, because it was hurting him. He said that the applicant told him, at the outset of the incident, that this was what fathers and sons do all the time. He said that after the applicant had ejaculated, the applicant made him go to the toilet, and the applicant had a shower.

The second incident occurred about one month later when the applicant and the complainant again attended JK’s house in Oxford Street to mow her lawns. JK was not at home at the time. After they had finished mowing, they went into the applicant’s old bedroom. The applicant produced a long purple dildo. He then made the complainant hold his penis and then give him a ‘blow job’ (which constituted an uncharged act). The applicant then put the dildo into the complainant’s anus. The complainant told him that he did not like it, and so the applicant removed it. The applicant then inserted his penis into the complainant’s anus, and thrust in and out of his anus, until he ejaculated. In his evidence the complainant said that it felt like ‘torture, pain and agony’, and he was screaming. After the incident the applicant drove the complainant home. In his evidence the complainant said he did not tell anyone what had happened because he was embarrassed and he thought if he said anything he would get into trouble.

The third incident occurred in 2002, when the complainant was nine years of age. The family moved to a home in Sandalwood Drive, Oakleigh South. About two months after they moved in, the third incident occurred. On that occasion no-one else was in the house, as the complainant’s mother and his sister JT (who was one or two years of age) had left the home to purchase groceries. At the time of the incident the complainant was playing in his bedroom with toys. The applicant entered it and sat next to the complainant on the bed and touched his penis over his trousers for thirty seconds. The applicant then pulled the complainant’s trousers down and rubbed his penis up and down for about two minutes. The applicant said ‘it’s what fathers and sons do all the time and it’s the only way to have sex’. The applicant then made the complainant take hold of his penis. The complainant rubbed the applicant’s penis up and down for a couple of minutes until he ejaculated.

The complainant said that the vast majority of the abuse occurred in his bedroom at Sandalwood Drive. He said it happened every couple of months, and that anal penetration would occur on most of those occasions. He said that the abuse was extremely painful and torturous, and he would scream. He could not recall any occasion when one of the neighbours came around and asked what the screaming was about.

The fourth incident took place when the complainant was ten years of age. The complainant commenced attending karate lessons at Kando Karate at the corner of North and Warrigal Roads, Oakleigh South when he was eight years of age. The applicant used to drop him off there and pick him up most of the time. When the complainant was about ten years of age, after the applicant had collected him from karate, the applicant drove to near the VicRoads premises in Oakleigh South at the end of the street. It was near an industrial estate. The applicant then told the complainant to give him a ‘blow job’ and the applicant said he would then purchase him a chocolate bar. In response, the complainant took hold of the applicant’s penis, rubbed it up and down a bit and put it in his mouth. While he did so, he imagined it was a lollipop, as the applicant had told him previously. The applicant then ejaculated in the complainant’s mouth. After the incident, they went to a shop and purchased a chocolate bar.

The fifth incident also occurred when the complainant was ten years of age. The incident again took place one evening after the applicant and he had finished karate lessons. On that occasion, the applicant stopped his vehicle outside a factory on Carroll Road. He instructed the complainant to give him a ‘hand job’ and a ‘blow job’. The applicant promised to give the complainant twenty dollars. The complainant took hold of and rubbed the applicant’s penis which was erect. He then put his mouth on top of the applicant’s penis and used it ‘like a lollipop’. The complainant said that the incident occurred at night time and no-one else was around.

The sixth incident occurred on the night before the applicant married the complainant’s mother. They were then staying at JK’s house. One of the applicant’s best friends, DS, and JK’s companion MM were also present. There were three mattresses on the floor. The complainant lay next to the applicant and DS lay on the mattress on the other side of him. On that occasion, the applicant told the complainant to give him oral sex, in exchange for which the applicant would give him a chocolate bar. Accordingly, the complainant took hold of the applicant’s penis, put it inside his mouth, and licked it like a lollipop until the applicant ejaculated. On the next day, the applicant gave the complainant a chocolate bar.

The next incident described by the complainant was in fact the eighth incident, which he said occurred in 2006 when he was thirteen years of age. The incident took place in the lounge room of the home in Sandalwood Drive, Oakleigh South. JH, who was then one year of age, was in the house. The complainant said that the applicant was standing, the complainant’s legs were on top of his shoulders, and the applicant thrust his penis in and out of the complainant’s anus. The applicant told the complainant not to worry about JH as she was too young to understand. The complainant said that on that occasion the anal penetration was hurtful, but it was not as painful as on the other occasions.

The ninth incident occurred on a family holiday in Rye in December 2007. On that occasion, the complainant’s mother and sisters had gone shopping. The applicant offered the complainant fifty dollars in exchange for oral sex. The applicant was on the edge of the bed, and the complainant was on his knees on the ground. He took hold of the applicant’s penis, rubbed it up and down, put it in his mouth, and licked it ‘like a lollipop’. The applicant ejaculated in the complainant’s mouth. He then paid the complainant fifty dollars as he had promised to do so.

In his evidence the complainant said that after that incident he did not tell anyone what was happening. He said that he thought he would get into trouble if he did so, and he was too embarrassed in any event. He was worried that his mother would make out that he was lying. By that time, the complainant was fourteen years of age, and he thought that what happened between himself and the applicant was a ‘father and son’ type of occurrence.

The final (tenth) incident occurred in May 2008 when the complainant was fifteen years of age. The complainant and the applicant had attended a movie ‘Iron Man’ at Southland. When they returned home, the complainant’s mother and two sisters were not there. The applicant and the complainant went into the applicant’s bedroom. On that occasion, the complainant was on his hands and knees. The applicant grabbed him by the shoulders and thrust his penis inside and out of the complainant’s anus. The complainant said that he felt ejaculation right at the end. He said that he felt pain and agony because the penetration was more forceful than usual, and it hurt more than usual. He said that he did not tell anyone what had happened because again he was too embarrassed about what other people would think about him, and he thought he would get into trouble with his mother.

The complainant gave evidence that by the time he was sixteen years of age he had taken up boxing as a hobby. One of the reasons he did so was to defend himself against the applicant. He said that when he turned sixteen years of age no further misconduct occurred between them. The complainant kept rejecting the applicant, and the applicant’s request for sexual encounters ceased when the complainant turned seventeen years of age. In the following year, in October 2011, the family moved to Chelsea Heights. One month later, the applicant and the complainant’s mother separated. The complainant remained living with his mother and sisters until 2013, when he then went to live with his girlfriend WA in Safety Beach.

Following his mother’s separation from the applicant, the complainant occasionally saw the applicant. He said that all of a sudden he and the applicant ‘miraculously’ got along together like nothing had ever happened. He said that he would see the applicant every month or so.

The complainant lived with WA for about three years. In August 2013, he disclosed to WA that the applicant had sexually abused him. He said on that occasion WA and he were in bed, and the complainant was not feeling well. WA wanted to have sex with him, but he did not wish to do so. When she asked why that was so, the complainant, who had been having thoughts about the applicant, told WA that the applicant had abused and raped him as a child.

Subsequently, a few days before Australia Day 2015, the complainant told his mother about what had occurred. On that occasion, WA was also present. The complainant told his mother that the applicant would abuse and rape him. A couple of weeks later in February 2015, the complainant went to the police and reported the abuse to them.

In cross-examination, the complainant said after the applicant moved in with his family, he regarded the applicant as a positive role model in his life. The applicant was a good father to him and would take him to the park and occasionally give him a treat. The complainant also said that he regarded the applicant’s mother JK as being a grandmother figure to him. JK lived in the Oakleigh property with MM. MM had had amputations on both of his legs and he had a number of health issues. He could only move around in a wheelchair.

The applicant and the complainant would visit JK’s home every four to six weeks in order to mow the lawn. He said that JK and MM were always pleased to see him. In cross-examination, the complainant disagreed with the proposition that whenever they visited her home, at least one of JK or MM were always home. He agreed that there were people living in the homes on either side of JK’s house.

The complainant said that on the first occasion when the applicant penetrated his anus with his penis (the first incident), he felt agony and pain and he was screaming as loudly as he could. The applicant pushed his penis all the way into his anus and ejaculated into him. The applicant did not use lubricant. He said that although he was screaming none of the neighbours came to make an inquiry. He said that when the applicant penetrated his mouth with his penis it felt as if it went all the way in. He agreed that the applicant had a huge penis, which he had observed in changing rooms when they went to the swimming pool or when they were naked together in the bedroom or bathroom.

The complainant acknowledged that JK had died a few years ago and that MM died in 2015. He denied that he made up the allegations about what happened at their home, because he knew that neither of them would be able to contradict anything he said.

The complainant said that on the second occasion on which an incident occurred at JK’s house (the second incident), JK and MM were not at home. He said that when the applicant inserted his penis into his anus he was screaming and crying, but no neighbour came and asked why he was screaming. He said it felt like torture.

The complainant said that the sexual abuse would occur every two months on average when he was between the ages of eight and sixteen years. He did not tell anyone, including his mother, about it. Every once in a while he would tell his mother that he did not want to go to JK’s house to mow the lawn, but he still had to do it.

The complainant confirmed that the third incident occurred at the home in Sandalwood Drive, Oakleigh. He agreed that an older couple lived on one side of the house and a family with children lived on the other side. He said that the vast majority of the abuse occurred in his bedroom in that house, and that it would occur every couple of months. On most of those occasions anal penetration would occur. He again said that the anal penetration was extremely painful and torturous, and that he would scream. He could not recall any occasion when one of the neighbours came around and asked what the screaming was about. He agreed that the abuse occurred when his mother went out shopping. He said his mother never said how long she would be out shopping. Sometimes she went to Woolworths which was a two minute drive away, and on other occasions she would go to the Aldi shop in Moorabbin Airport that was five or ten minutes away. The complainant said there was never an occasion when his mother came home while the applicant was abusing him.

The complainant agreed that the fourth incident occurred when they were returning home from a karate class. The applicant was wearing karate gear which was quite hard like canvas. He said that when the applicant removed his trousers they came off quite easily. He agreed that adults at karate wear a protective device over their genitals, which is shaped like a cup. At the time of the fourth incident the applicant was wearing such a device. But when he pulled his trousers down, the cup was also removed. He said that the incident occurred about 7:00 pm. It lasted about fifteen to twenty minutes. He agreed that there was an operating VicRoads office in the street, but at the time no-one was walking or travelling along the street. He agreed that further north from the incident Carroll Road turned into Centre Road which is a fairly major road. However, at the time there were hardly any vehicles around. No-one stopped or rapped on the window or yelled out.

In relation to the sixth incident, which occurred on the night before the applicant married the complainant’s mother, the complainant reiterated that the applicant, himself and DS slept in the same room. There were three mattresses on the floor lying next to each other. He said that it was in that context that the applicant requested him to give him oral sex. He said that the incident lasted a couple of minutes. During it DS was lying on the mattress next to them, but he was asleep. He agreed that he knew that DS had passed away in mid-2012.

The complainant said that in the eighth incident (which happened in the lounge room of their home), he suffered extreme pain when the applicant inserted his penis into his anus, and he was screaming. The penetration continued for a couple of minutes. He said the applicant’s hips were touching his buttocks, so his perception was that the applicant’s penis went all the way into his anus. He could not recall where his mother and his sister JT were at the time. He said that neighbours never came around when he screamed.

The complainant said that when the family went on a holiday to Rye in late 2007, they did a lot of activities together as a family. However, sometimes the females separated from the males. On the occasion of the ninth incident, his mother and sisters went around the corner to the Safeway store, and they were gone for about an hour. The incident commenced about half an hour after they left. The complainant said that the tenth incident occurred at about 1:00 pm or 2:00 pm. He did not know when his mother and sisters had got home on that day. They returned about one hour after the applicant had abused him. He said that on that occasion the anal penetration was more forceful than usual, it lasted a couple of minutes, and he was screaming.

The complainant agreed that when he attended the police station in 2015, he took some notes which he had prepared. In the notes he said that the applicant always watched pornography when he raped the complainant. In cross-examination, he said that sometimes the applicant watched child porn while they were in the lounge room.

The complainant said that although the abuse lasted for some eight years, he was too embarrassed and afraid to tell anyone about it. He agreed that when he was twelve years of age, he signed a Father’s Day card which he gave to the applicant. On it he wrote ‘Thanks for being a great stepdad through all the years. You’ve done a lot better [than] my dad ever would. So Happy Father’s Day’. The complainant said that in fact he hated the applicant, but he never said it to his face. He agreed that he would tell his mother that he was terrified of his biological father. He said that his mother got him to sign the Father’s Day card which was given to the applicant. He said the applicant had tricked him into thinking that the sexual abuse was a father/son matter.

The complainant said that when the applicant penetrated his anus with his penis, it would hurt ‘like hell’. The complainant did not talk to his mates about it, because he thought it was normal.

The complainant said that he first told his mother about the abuse a couple of days before Australia Day 2015. He said he did not go into specifics. He just told her that the applicant had raped and abused him.

The complainant agreed that when he was growing up, the applicant had taken over the chief role of disciplining him by placing boundaries on him. During his middle and late teenage years the applicant would have heated arguments with the complainant about that, and the complainant would tell him that he was being unfair. He said that when that occurred he would be at the end of his emotional tether and ‘lose’ himself. He agreed that in none of those arguments did he raise the fact that the applicant had sexually abused him, although at that time he had lost control of his emotions.

The complainant agreed that after his mother and the applicant separated in November 2011, the applicant moved to Chelsea and then Rye and formed a new relationship with a woman. The complainant continued to see the applicant on a monthly basis until he made the allegations to his mother in January 2015. He said on one occasion he contacted the applicant because he had car problems. In addition, there were occasions when the complainant visited the restaurant conducted by the applicant’s girlfriend in Rosebud West, and he would talk to the applicant about his relationship with WA. He agreed that when the applicant had to move home, he had helped the applicant to do so. He also attended a function when the applicant’s girlfriend’s mother got married. In addition, just before January 2015, the complainant celebrated Christmas with the applicant and other people in Glen Waverley. He said that when he was living with WA in McCrae and Safety Beach, he would catch up with the applicant from time to time. He said that after his mother separated from the applicant, he and the applicant just ‘miraculously got along like nothing had happened’.

The complainant agreed that after he first made a complaint to his mother, she reported the matter to the police. As a result, he was contacted by the police and he made a statement. Shortly after doing so, he accompanied his mother on a visit to a solicitor, who they engaged to claim compensation from Victims of Crime. For that purpose, he provided to the solicitor a copy of the statement that he had made to the police.

The complainant’s sister, JT, gave evidence concerning the seventh incident that was the subject of charge 13, on which the applicant was acquitted. She said that when she accidentally opened the door to the bathroom she saw the applicant and the complainant both naked, with the complainant bent over, and the applicant behind him with his penis in the complainant’s anus. She said that their bodies were touching, but she only looked into the bathroom for a few seconds.

JT said that subsequently (after the complainant had complained to their mother), she accompanied her mother to the police station where she spoke to the informant. On a subsequent occasion, she made a statement to the police.

In cross-examination, JT said that before she went to the police in May 2015, her mother had told her that the complainant had been abused by the applicant. When she went to the police, the complainant had told her what had happened, that he had been raped by the applicant. In respect to the incident, she agreed that she only looked into the bathroom for a couple of seconds. She could not recall the complainant reacting to her opening the door.

WA gave evidence that she first met the complainant in August 2010 and they formed a relationship. She and the complainant moved in together in September 2013. About one year later, the complainant told her something about the applicant. At the time they were not having sexual relations. WA asked the complainant why that was so, and the complainant responded that sex is a sin. He told WA that he had been sexually assaulted for a number of years. WA asked him if they could have sex, to which he responded in the negative. When she pressed him further, he said that his stepfather had sexually assaulted him.

Sometime later WA was present with the complainant in a park in Chelsea Heights when the complainant told his mother something about the applicant.

The complainant’s mother, WC, gave evidence as to the relevant background matters, including her relationship with the applicant, her marriage to him, and her children. She said that the applicant used to teach karate, and that he would take the complainant to and from karate lessons. WC did not notice anything unusual about the complainant when he returned home from those lessons.

WC confirmed that the complainant would accompany the applicant when he attended his mother’s home to mow her lawns. When they subsequently returned home after those visits, the complainant would go into his room.

WC then gave evidence about the complaint that the complainant made to her on Australia Day 2015. At the time WC, the complainant and WA were together in a park. The complainant told WC that he had been sexually abused by the applicant during the whole of the time that she was married to the applicant. The complainant told her that the applicant would rape him almost each time that she left the house. He also said that that happened once while they were on holidays in Rye, and that it once happened in the lounge room when his sisters were little. He said that on that occasion the applicant had said to him ‘Don’t worry they’re too little, they won’t know’.

After the complainant spoke to WC, she then reported the matter to the Department of Health and Human Services and later to the police.

The final relevant witness called on behalf of the prosecution was Dr Andrea Smith, a paediatrician, who was studying for a Master’s Degree in Forensic Medicine.

In her evidence, Dr Smith described, in some detail, the structure of the anus and the manner in which it works. She described the natural processes (such as passing of stools) in which injury might be sustained to the anus. She explained that injuries to the anus ordinarily heal more rapidly than injuries to other parts of the body. Dr Smith said that she had seen a number of children who had alleged that adult penises had penetrated their anus, and it was recognised in the literature that that is possible. She said that the question whether, in such a process, damage will be caused to the child’s anus, depends on a number of factors, including: the size of the child, the size of the penis, the amount of force involved, whether there was resistance by the child, the degree of relaxation of the tissues, the integrity and health of the child’s anal tissues, and whether lubrication was used.

Dr Smith explained that if injury were to occur in such a process, the child’s anus would ordinarily repair quite quickly, within one to three days. In her evidence in chief, Dr Smith was referred to measurements made by Dr Byron Collins (a pathologist) who had examined the applicant’s penis. Dr Smith stated that the question whether a penis of that dimension could enter the child’s anus would depend on the factors that she had outlined, including the degree of force and the like. She said that it is possible that in such a process the complainant might have suffered injuries, but it was quite possible that he might not have.

In cross-examination, Dr Smith stated that the literature suggests that lacerations can occur in as much as fifty per cent of cases in which anal penetration is reported. She agreed that one factor, which would determine whether injury occurred, is the size of the object in question. She said that the literature reported that between ten per cent and fifty per cent of children, who have been anally penetrated, will sustain anal laceration. She agreed that, based on the measured dimensions of the applicant’s penis, and the evidence of the complainant that his penis was inserted the whole of the way into his anus, it would have been more probable than not that the complainant would have suffered an injury on at least one occasion. She also agreed that anal penetration of a child can result in significant laceration to the anus which can require surgery, in which case there is an increased risk of infection by bacteria. She also agreed that if an object is placed within the mouth and pushed towards the back of the mouth, that can trigger a gag reflex.

At the conclusion of the prosecution case, Dr Byron Collins gave evidence on behalf of the applicant, and the applicant himself gave evidence and was cross-examined.

Dr Collins stated that he had practised as a pathologist since 1972. In May 2018 he examined the applicant’s external genitalia and took measurements of them. He found that when the applicant’s penis was flaccid, it was fifteen centimetres long and 12.5 centimetres in circumference. In a semi-erect state, it was nineteen centimetres long and fourteen centimetres in circumference.

In cross-examination, Dr Collins stated that if the applicant’s penis was fully erect, it would have been larger than when it was in a semi-erect state. He said that the applicant’s penis was of larger dimension than average. He did not suggest that it was not capable of penetrating the anus of a child. He said that because of a variety of factors it is difficult to indicate whether a particular individual would sustain injuries to the anal region following penetration of it by a penis. However, having regard to the physical dimensions of the applicant’s penis, it was reasonably possible that the complainant would have suffered anal injuries during the initial alleged penetration when he was eight years of age. He (again) said that in that respect it is extremely difficult to give a dogmatic answer, because of a variety of factors that are involved. However, taking into account the size of the applicant’s penis and the probable size of the complainant’s anus at the particular time, the ‘physicality’ of the event, the multiple occasions on which it occurred, and the fact that no lubrication was used, it was reasonably possible that the complainant would have sustained anal injuries. He considered that it would be unlikely that the complainant did not suffer injuries, but he could not definitely exclude the possibility that there were no injuries.

The applicant gave evidence that he first met the complainant’s mother in 1997, and that he subsequently formed a relationship with her in 2001, when he moved into the address in Banksia Street, East Bentleigh. During the previous four years, he would take the complainant to a nearby park, take him fishing, and take him on bike rides. Five months after the applicant moved into the home in Banksia Street, they moved to the premises in Sandalwood Drive. The applicant said that he regarded himself to be a father figure to the complainant. At the time the complainant was studying karate so the applicant joined the same club. In addition, the applicant and the complainant went to movies, went on bike rides and went fishing occasionally together.

The applicant explained that his mother, JK and his stepfather, MM, lived in premises in Oxford Street, Oakleigh. Although they were no longer together in a relationship, they lived under the same roof. Both of MM’s legs had been amputated, so that he was confined to walking on crutches and subsequently to a wheelchair. Neither JK nor MM drove a motor vehicle. The applicant said that the complainant treated JK and MM as if they were his grandparents.

The applicant confirmed that he would attend his mother’s home every four to six weeks to do jobs around the house, including mowing the lawns. On those occasions, the complainant would help him. He denied that on any of those occasions he sexually abused the complainant in his room, and he denied that he ever abused the complainant. He denied being sexually attracted to the complainant, and said that he did not own a purple dildo.

The applicant confirmed that on occasions the complainant and he would return home from attending karate together. When they were training there, he (the applicant) would wear a karate gi, which was made of heavy 16 oz canvas. He would wear a groin guard underneath it to protect his genitals. He said that in order to remove the guard, it was necessary to undo the jacket, untie the trousers, and remove the trousers. He said that it would be quite uncomfortable if he pulled his trousers and the groin guard around his thighs.

The applicant said that he had never stopped in Jacks Road with the complainant on the way home from karate. He said that the area was a large, developed estate. Jacks Road was attached to Carroll Road which was a main arterial road servicing factories and housing in the area. He said that at 7:00 pm in the evening, a number of vehicles would be regularly traversing the road. In addition, at that time, there were regular walkers and joggers making their way along the footpath and the road. He said that he had never stopped in Carroll Road outside a factory on the way home from karate with the complainant. He denied stopping his vehicle and asking the complainant to give him a ‘hand job’ or a ‘blow job’.

The applicant stated that on the day before he married the complainant’s mother, he stayed at his mother’s (JK’s) house in Oxford Street. He said that his mother, MM and his friend, DS, were all present. At night time, the complainant, DS and he shared the spare bedroom. The applicant and the complainant each had a spare mattress on the floor. DS was on a couch which faced the mattresses. The applicant denied that during the night he asked the complainant to give him oral sex, and he denied that the complainant gave him oral sex. The applicant said that DS had died in July 2012, that MM died in February 2015, and his mother JK had passed away on 31 May 2015.

The applicant denied ever sexually abusing the complainant at the premises at Sandalwood Drive. He said that there might have been occasions when the complainant and he might have been naked in the same room, such as changing in communal swimming centres or going in and out of the bathroom. He denied the seventh incident (as described by JT) occurred.

The applicant further said that while they were living at the Sandalwood Drive house, their next-door neighbours on one side of the house were an old couple. The couple’s adult children were married and they frequently attended there with their own children. The occupants of the house on the other side consisted of a family with three children. He said there was always someone home in those premises. The applicant stated that there was never any occasion when anyone came around to their house enquiring about screaming or yelling in the house. He denied that he ever watched pornography with the complainant.

The applicant gave evidence relating to the family holiday in Rye. He said that on that occasion the family spent almost all of the time together, walking in the park, using the park barbecue facilities and going to the beach. He said that during the holiday he would do the shopping at the Rye Safeway store. He could not recall any occasion during the holiday in which he was alone in the holiday house with the complainant. He denied ever sexually abusing the complainant on the holiday.

In respect of the tenth incident described by the complainant, the applicant said that he did attend the film ‘Iron Man’ with the complainant. He denied sexually abusing the complainant on that occasion or on any other occasion.

The applicant then identified the Father’s Day card referred to by the complainant in cross-examination, which was tendered in evidence. He said that, at the time, the complainant was then twelve years of age. He said that he tried to be a role model for the complainant. He denied saying to the complainant that it was natural for a father to have sex with his child.

The applicant said that he separated from WC in 2011. He first moved to Chelsea and then to Rye where he formed a new relationship with another partner, MK. During that time he continued to see the complainant at least once per month. When the applicant lived in Rye, the complainant would visit his house and have dinner with MK and the applicant. The complainant would also attend the restaurant that MK owned in Rosebud West. The applicant said that after he separated from WC, he continued to act as a father figure to the complainant, giving him advice on matters such as his relationship problems with WA, his budget and his motor vehicle. He said that he was shocked when he learned about the complainant’s allegations against him in 2015.

In cross-examination, the applicant did not agree with the evidence given by JT (concerning the seventh incident) as to what she observed in the bathroom. He denied that at any time he and the complainant were naked in the bathroom together. He said that they might have crossed paths entering and exiting the bathroom before he had put the towel around himself or something like that.

In respect of the eighth incident, the applicant denied that he had anal sex with the complainant in the lounge room. He said that when he commenced his relationship with WC, he had a good relationship with the complainant who saw him as a father figure. He said that he was happy to take on that role, and he denied he had abused that position by telling the complainant that he would teach him about sex. He agreed that the complainant would accompany him to his mother’s house when he went there to mow the lawns. He denied that, on those occasions, he sexually abused the complainant. He said it was difficult for his mother JK and MM to leave the house and they did not have a motor vehicle. He agreed that there were occasions when one or other of them might have left the house. He denied that he ever took the complainant into his old bedroom and he denied that he commenced abusing the complainant there.

In respect of the second incident, the applicant denied that he had a dildo, and he denied that he had sexually abused the complainant as alleged by the complainant in his evidence.

In respect of the incidents, that were alleged to have occurred after they had attended karate, the applicant agreed that karate trousers are quite loose, and the groin protector is removable. However, in order to remove it, it is necessary first to remove the trousers. He agreed that the protector can move down with the trousers when they are removed. He said, however, that in order to pull down the trousers, it is necessary to have some room, because they are made of heavy canvas gear. He said it would be very difficult to pull down the trousers and remove the protector in a motor vehicle, but it would be possible to do so. The applicant agreed that, on some occasions, he drove the complainant home after they both attended karate classes. He denied that on any of those occasions he abused the complainant.

In respect of the sixth incident, the applicant confirmed that on the morning of the wedding, he did have a shower in Oxford Street. He said it was the only time that he used the shower there because of its lack of cleanliness. However, he used the shower on that day, because it was his wedding and he wished to be clean for the occasion. He said it was a very quick shower.

In respect of the ninth incident, he said that the family was together as a whole for about 95 per cent of the time during the holiday at Rye. He said that he was the person who would do the shopping during the holiday. He agreed that it is possible that on occasions WC might have gone to the supermarket leaving him alone with the complainant. He denied the allegation by the complainant that on such an occasion he sexually assaulted the complainant.

Summary of submissions

Before summarising the respective submissions of the parties, it is appropriate to acknowledge that the Court has had the considerable advantage of well-structured and comprehensive written and oral submissions presented to it on behalf of the applicant and the respondent. The content of the submissions, and the manner in which they were presented, has been of significant assistance in clearly defining the issues which must be determined on this application, and the competing arguments advanced in respect of each of them. The following is but a brief summary of the submissions presented on behalf of each side.

On behalf of the applicant, counsel commenced by making two preliminary points. First, he submitted, essentially the case is one in which the jury was required to determine the issues by reference to the evidence of the complainant, which was largely unsupported, and which was contradicted by the evidence of the applicant. Although the jury was correctly given a ‘Liberato’ direction[6] in respect of the applicant’s evidence, he submitted, in a case such as the present, the line of reasoning specified in the direction is not a line of reasoning that lay people ordinarily employ in their everyday life.
[6]Liberato v The Queen (1985) 159 CLR 507, 515 (Brennan J); [1985] HCA 66 (‘Liberato’).

Counsel further noted, as a second preliminary point, that the applicant was at a significant forensic disadvantage in presenting a rebuttal of the prosecution case. The complainant, in his evidence, was only specific as to the date upon which one incident (the sixth incident) occurred. The applicant’s mother JK and stepfather MM had both passed away before investigating police were able to speak with them. They would have both been important potential witnesses in respect of the first, second and sixth incidents. Significantly the applicant’s friend, DS, also died before investigating police could speak with him. He was potentially an important witness in relation to the sixth incident.

It was in that context that counsel for the applicant outlined thirteen particular considerations which, he submitted, taken together compelled the conclusion that the jury could not reasonably have been satisfied, beyond reasonable doubt, of the guilt of the accused. Counsel did not suggest that any of those matters, taken singularly, were sufficient to discredit the evidence of the complainant as to render the verdict of the jury unreasonable. Rather, he submitted, it is the compounding effect of each of them, taken together, that leads that conclusion.

The first matter, relied on by counsel, was the absence of any injury to the complainant as a result of any of the acts of anal penetration perpetrated on him by the applicant. Counsel noted that the complainant alleged that such penetration first occurred when he was eight years of age, and that the complainant said that on a number of the occasions the penetration was deep, and that it was always extremely painful. Counsel referred to the evidence of Dr Collins as to the dimensions of the applicant’s penis, and the evidence of Dr Smith and Dr Collins that it was unlikely that the complainant would not have sustained injury. In those circumstances, it was submitted, the absence of any evidence of such injury, or sign of it, is particularly significant. In that context, counsel noted that the prosecution did not lead any evidence from the complainant’s mother that she had observed anything unnatural about the complainant’s gait or demeanour. In addition, while there was evidence that the complainant was prepared to defy the applicant on a number of matters relating to domestic discipline, nevertheless he did not, on any occasion, make complaint to his mother or anyone else about the applicant’s conduct towards him.

The second matter, relied on by counsel, concerned the evidence of the complainant that on each time in which the applicant penetrated his anus, he was screaming in pain. Counsel noted that there were neighbouring houses on either side of the family home in Sandalwood Drive. Notwithstanding the frequency with which the acts of anal penetration occurred, it was remarkable, counsel contended, that on no occasion did any neighbour or passer-by intervene to ascertain the reason why such screaming was emanating from the house.

In that context, as a third consideration, counsel drew attention to the evidence of the complainant that during the acts of anal penetration he could feel the applicant’s hips against his buttocks. In view of the size of the applicant’s penis, it was submitted, such evidence was quite extraordinary. In addition (as the fourth consideration), counsel noted the evidence of the complainant that on the occasions of oral penetration, the applicant’s penis went almost fully into his mouth. Counsel submitted that, in light of the dimensions of the applicant’s penis, that was also most unlikely to have occurred.

The fifth matter referred to by counsel was the particularly brazen behaviour of the applicant as described by the complainant. Counsel submitted that it was improbable that the applicant would have launched immediately into the rather extreme form of offending, alleged to have been engaged in by him, without there being any evidence of ‘grooming’ or the like. In addition, it was submitted, it was extraordinarily brazen for the applicant to have allegedly engaged in the conduct attributed to him by the complainant in the family home in circumstances in which, on the evidence of the complainant, his mother had gone shopping nearby, and was likely to return unannounced at any time.

As a sixth point, counsel submitted there were particular improbabilities about the offending that was alleged to have comprised the first two incidents, which took place at the house of the applicant’s mother. On each occasion, the complainant gave evidence that he and the applicant were at the house alone, and that the applicant’s mother and stepfather were not present. Counsel submitted that that evidence is at odds with the evidence that the applicant’s mother and stepfather were each excited to see the complainant, and the evidence that accordingly visits were always arranged with the applicant’s mother so that they would be home when they went there. In addition, the applicant’s mother did not have a motor vehicle, and his stepfather was significantly incapacitated.

The seventh matter, relied on by counsel, concerned the fourth and fifth incidents, which occurred when, according to the complainant, the applicant required him to perform oral sex in the applicant’s motor vehicle on the way home from karate classes. In that respect counsel noted the evidence that it would have been difficult for the applicant to have removed both his trousers and protector, and that if he had done so, his movements would have been quite restricted.

The eighth matter referred to by counsel was the evidence given by the complainant that when he and the applicant visited the applicant’s mother’s home, he (the complainant) would push the lawn mower from when he was at the age of eight years. It was submitted it was quite improbable that a child of that young age would have been able and permitted to have used a motorised lawn mower.

The ninth matter relied on by counsel was the content of the Father’s Day card, which the complainant gave to the applicant when he was twelve years of age. It was submitted that the complainant’s evidence, as to why he wrote a particularly endearing message on the card, was internally inconsistent.

The next (tenth) matter, relied on by counsel, was the fact that after the applicant and the complainant’s mother had separated, the complainant voluntarily resumed a friendly relationship with the applicant which continued until the Christmas before the complainant first made a complaint to his mother (in January 2015).

The eleventh matter, relied on by counsel, was the evidence given by the complainant that until he was sixteen years of age, he thought that the applicant’s sexual abuse of him was part and parcel of a normal relationship between a father and son. It was submitted that it is most unlikely that a young teenager, at that stage of his life, would have still entertained that view.

The twelfth point, on which counsel relied, were some inconsistencies in the account given by the complainant. First, there was an inconsistency between the notes given by the complainant to the police (in which he said that the abuse occurred while the applicant was viewing pornography) and the evidence given by the complainant on that aspect. Secondly, it was submitted, there were differences between the content of the complaint made by the complainant to his mother and the evidence that he gave at the trial.

The final (thirteenth) matter relied on by counsel concerned inconsistencies between the evidence given by the complainant as to his age when the fourth and fifth incidents occurred, namely, that he was then ten years of age, and the contents of his police statement and his evidence at the committal proceeding, that he could only recall that those incidents occurred when he was between the ages of nine years and twelve years. It was submitted that the change in the complainant’s account, as to that matter, was significant, because by fixing the dates of the incidents as occurring when he was ten years of age, the complainant’s evidence had the effect that the offences alleged against the applicant constituted acts of incest, rather than the less serious offence of committing an indecent act.

In response, counsel for the respondent submitted, in relation to the first matter relied on by the applicant, that the absence of anal injury sustained by the complainant was not inconsistent with the evidence given by him. In that respect, counsel drew attention to the evidence of Dr Smith that injuries, to that part of the anatomy, tend to repair very quickly. In addition, while the complainant gave evidence that he considered that he had been fully penetrated by the applicant, Dr Smith said that she did not consider that children are able to give an accurate assessment of that question.

In respect of the evidence by the complainant, that he screamed throughout each act of anal penetration, counsel noted that at the trial, counsel for the applicant had not elicited evidence as to the structure of the neighbouring houses, how far those houses were from the applicant’s house, and the age and state of health of the neighbours. With respect to the third matter, the evidence of the complainant, that the applicant fully penetrated his anus (on the occasions of anal penetration) or his mouth (on the occasions of oral penetration), was explicable by the evidence of Dr Smith as to the unreliability of the perceptions of a child as to the degree to which such penetration might have occurred.

Counsel then addressed the submission made on behalf of the applicant concerning the brazen nature of the conduct attributed to the applicant, which rendered it improbable that he would have been able to engage in that conduct without being detected by others. In that respect, counsel for the respondent noted that, before the abuse commenced, the complainant had come to view the applicant as a father figure, and that, on the occasions of the abuse, the applicant had told him that such conduct was part of a normal father/son relationship. Counsel also noted the evidence of the complainant that on each occasion, the offending conduct only lasted a short time. In addition, while on those occasions the complainant might not have known how long his mother intended to be out of the house when she went shopping, it is likely that the applicant would have been privy to that information.

Counsel for the respondent noted that although the applicant’s mother might have been excited and pleased to see the complainant on each occasion, that did not mean that it was probable that she was at home on each occasion upon which the applicant and the complainant visited them. Counsel submitted that, in view of the number of occasions upon which such visits occurred, it was not improbable that there might have been two occasions upon which both the applicant’s mother and his stepfather were absent for some reason. Counsel also noted the evidence of the complainant, in respect of the sixth incident, that at the time of the incident, the applicant’s friend DS was already asleep.

In respect of the two incidents, that occurred while the applicant and the complainant were driving home from attending karate classes (the fourth and fifth incidents), counsel for the respondent referred to the evidence given by the applicant in cross-examination that although it would have been difficult for him to have removed his trousers and protector while he was seated in the motor vehicle, it would not have been impossible for him to have done so.

In respect of the ninth, tenth and eleventh matters relied on by the applicant, counsel noted that the complainant regarded the relationship that he had with the applicant to be one that was akin to that of a father and son relationship. The complainant had formed that relationship with the applicant in circumstances in which he had previously witnessed his own father being violent to his mother. In those circumstances, it was submitted, it is not improbable that the complainant, at a young age, accepted the applicant’s explanation that the acts of sexual abuse constituted ordinary conduct between a father and son. It was not until the last incident that the complainant realised that the applicant’s conduct to him was wrong. Further, it was submitted, it was not incongruous that, notwithstanding the nature of the abuse, the complainant continued to consider that aspects of his relationship with the applicant were positive. The continuation of the relationship, it was submitted, was explicable by the fact that the complainant wished to continue to avail himself of the positive aspects of it.

Finally, counsel submitted that the inconsistencies, relied on by the applicant, were insignificant, and did not detract from the credibility or reliability of the evidence given by the complainant, which was supported by the complaint that he made, first to WA, and subsequently to his mother.

Legal principles

The ground, upon which the applicant seeks leave to appeal, is based on s 276(1)(a) of the Criminal Procedure Act 2009, which provides that a court should allow an appeal against conviction if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.

In order to succeed on that ground, the applicant must demonstrate that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt on the particular charges in issue.[7] In determining that question, the Court is required to make its own independent assessment of the evidence. However, in doing so it must give full weight to the jury’s advantage in seeing and hearing the witnesses, and to the principle that the jury was the body entrusted with the principal responsibility of determining the guilt or innocence of the accused person.
[7]M v The Queen(1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; SKA v The Queen(2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ); [2011] HCA 13; Pell v The Queen (2020) 268 CLR 123, 146–7 [43]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (‘Pell’).

In R v Baden-Clay,[8] the High Court outlined the latter principle in the following terms:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.[9]

[8](2016) 258 CLR 308; [2016] HCA 35 (‘Baden-Clay’).

[9]Ibid 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations omitted). See also Fennell v The Queen (2019) 373 ALR 433, 452 [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); [2019] HCA 37 (‘Fennell’).

In M v The Queen,[10] in an oft-cited passage, Mason CJ, Deane, Dawson and Toohey JJ explained the manner in which the appellate court should give weight to the advantage had by the jury in viewing and hearing the witnesses, as follows:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. 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.[11]

[10](1994) 181 CLR 487; [1994] HCA 53.

[11]Ibid 494–5 (citations omitted).

In Pell, the High Court emphasised that the assessment of the credibility and reliability of a witness, which is based on the manner in which the witness gave evidence in the witness box, is a matter for the jury and not the appellate court. Thus, on appeal, the court is required to assume that the jury concluded that the evidence of the relevant prosecution witnesses was credible. The task of the court is to determine whether, notwithstanding that assessment, the state of the evidence was such that it was not reasonably open to the jury to be satisfied, beyond reasonable doubt, of the guilt of the accused.

The High Court expressed those principles in the following terms:

Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
It should be understood that when the joint reasons in M v The Queen spoke of the jury’s ‘advantage in seeing and hearing the witnesses’ as being ‘capable of resolving a doubt experienced by a court of criminal appeal’ as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury’s assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[12]

[12]Pell (2020) 268 CLR 123, 144–5 [37]–[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (citations omitted). See also Fennell (2019) 373 ALR 433, 452 [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); [2019] HCA 37.

In determining that question, it is relevant to consider whether it was open to the jury to accept the complainant’s evidence or to be satisfied that his evidence was truthful and reliable. Ordinarily, a court’s assessment of the credibility and reliability of a witness is made in the context of all the evidence in the case. It is not uncommon for a court’s initial impression as to a witness’ evidence to alter after the court has had the opportunity to consider and assess it in light of all the evidence in the case. Ultimately, the question for this Court is not, simply, whether the jury accepted, or whether it was open to the jury to accept, that the complainant’s evidence, standing alone, was credible and reliable. Rather, it must be emphasised, the question is whether, taking into account all the evidence, including that given by the complainant, the jury, acting reasonably, ought to have entertained a reasonable doubt about the guilt of the applicant on the charges on which he was convicted.[13]
[13]Henderson v The Queen [2021] VSCA 312, [75] (Priest, Kyrou and T Forrest JJA)

In a case such as this, the determination of that issue is by no means straightforward. The evidence in the case involved alleged conduct that was particularly repulsive. In cases involving charges that allege the sexual abuse of minors, including the present case, the circumstances of the alleged offending are such that, ordinarily, there is limited, if any, evidence that supports that of the complainant. Notwithstanding those considerations, the charges in such a case, including this case, allege serious criminal offending. In such a case, the presumption of innocence, and the requirement that the prosecution must prove the guilt of the accused beyond reasonable doubt, must be accorded the same weight as in any criminal case. The applicable standard of proof is not modified or diminished by reason of the egregious nature of the conduct with which the accused person is charged.

It is almost impossible to prove anything with absolute certainty when reconstructing past events and the prosecution are not required to do so. A reasonable doubt is not an imaginary or a fanciful doubt or an unrealistic possibility. So if you do have a reasonable doubt about any element of each offence then you would find [Mr Cavanaugh] not guilty and the language, as I said, is the best indication of the standard required. And that’s probably the best explanation of that [I] can give you, because there is not actually a definition as such.

Consideration

This case was not a complex case involving multiple complainants, or one that required complicated directions. The directions given by the trial judge were directions one would expect to encounter in many trials of sexual offending of this kind. Furthermore, it is apparent that the jury were capable of understanding and acting on at least one of the specific directions given, because they acquitted the applicant of charge 13,[35] which was based solely on the evidence of the complainant’s sister, which had been the subject of an unreliability direction.
[35]See [29] above.

I also note that the applicant did not apply for a permanent stay based on forensic disadvantage resulting from delay and/or from the fact that three potential witnesses had passed away. Nor, in my opinion, would a stay have been granted. A court will only grant such a stay in rare or exceptional circumstances, where the continuation of the proceedings would involve unacceptable injustice or unfairness. Such unacceptable injustice, or unfairness, can result from ‘a probable forensic disadvantage which is incurable’.[36] Where the main argument in support of the grant of a permanent stay is the unavailability, by reason of delay, of important witnesses, it must be shown that their evidence, had it been available, would probably have materially assisted the defence case. This flows from the requirement that the accused seeking such a stay demonstrate the probability, and not mere possibility, that the refusal to grant a stay would result in an unacceptably unfair trial.[37]
[36]McGee (a pseudonym) v The Queen [2020] VSCA 146, [137], quoting R v FJL(2014) 41 VR 572, 580 [38] (Osborn JA, Redlich JA agreeing at 589 [90], Sifris AJA agreeing at 589 [91]); [2014] VSCA 57.
[37]Hermanus v The Queen(2015) 44 VR 335, 342–3 [40] (Priest JA, Maxwell P agreeing at 336 [1]); [2015] VSCA 2, cited with approval in Morton (a pseudonym) v The Queen[2020] VSCA 49, [95] (Beach and Kyrou JJA).

In this case it was not at all clear that the three deceased persons would have given evidence that would ‘probably have materially assisted’ the defence case. On the complainant’s account of the wedding night offending, one of Mr Cavanaugh’s friends, DS, was asleep close by during the offending.[38] Thus had DS given evidence that he did not hear or see anything untoward, that would not have been inconsistent with the complainant’s evidence; and it is unlikely that his evidence would have been that he was awake the entire night and yet observed nothing. As for the applicant’s mother (‘JK’) and her partner (‘MM’), the complainant’s evidence was that they were absent when the offending at their home occurred. Given that, they could not have given evidence that directly contradicted the complainant’s account. At its highest, they could have said that they were not aware of occasions when the applicant came to their home with the complainant to mow the lawns when they were absent. But I do not consider that the inability of the applicant to call them as witnesses rendered the trial incurably unfair. Rather, the forensic disadvantage was curable by a suitable direction to the jury, as occurred.
[38]See, eg, [28], [45], [62] above.

Thus the question is whether, notwithstanding the careful and appropriate directions to the jury, the evidence was such that it was not open to the jury to convict the applicant. As the authorities emphasise, that is a stringent standard. For the reasons that follow, I am not persuaded that it is met.

The ‘rule in Browne v Dunn’

As Kaye JA observes in his reasons,[39] in the hearing before us there was some discussion as to whether the applicant might be precluded from relying on the absence of evidence of injury to the complainant, because counsel for the applicant at trial did not cross-examine the complainant concerning that issue. The prosecution submitted that because the complainant was not asked if he sustained injury, the absence of injury could not be relied on by this Court in determining whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. In the course of the discussion that followed, it was suggested that the rule of practice, commonly referred to as the ‘rule in Browne v Dunn’, had the effect that if the absence of injury was to be relied upon as part of an attack on the complainant’s credibility, then fairness required that that matter have been put to him, and it was not.
[39]See [144] above.

Kaye JA observes[40] that the application of the rule in Browne v Dunn to defence counsel in a criminal trial is materially different from the manner in which the rule ordinarily operates in civil proceedings, drawing in particular on MWJ.[41] It is appropriate to record at the outset that, in relation to this issue, I am in agreement with Kaye JA’s reasons. In particular, I agree with his Honour that it was not for the applicant to have elicited evidence concerning whether the complainant was injured or not. I agree that, where the prosecution did not elicit such evidence, it was not for the accused to embark on a course of cross-examination designed to establish the non-existence of that evidence. That is particularly so given the manner in which the prosecution conducted the case more generally, including by calling expert evidence to the effect that the acts alleged could have occurred without causing injury, in response to the defence expert whose evidence was that an absence of injury was unlikely.
[40]See [145] above.
[41](2005) 222 ALR 436, 441 [19] (Gleeson CJ and Heydon J); 448–9 [39]–[41] (Gummow, Kirby and Callinan JJ); [2005] HCA 74. His Honour also refers to Hofer [2021] HCA 36, [28]–[29] (Kiefel CJ, Keane and Gleeson JJ); Manunta (1989) 54 SASR 17, 23 (King CJ); Birks (1990) 19 NSWLR 677, 690 (Gleeson CJ); Laz [1998] 1 VR 453, 464 (Ormiston and Charles JJA, Vincent AJA); Foley [2000] 1 Qd R 290, 291–2 (De Jersey CJ, Thomas JA and Derrington J); Morrow (2009) 26 VR 526, 528 [2]–[6] (Nettle JA); [2009] VSCA 291.

I agree with Kaye JA that, in many criminal trials, it would be both unfair and unrealistic to expect the accused to enter upon such an area.[42] I also agree that the trial proceeded on the accepted premise that the complainant did not suffer any injury, nor was he perceived by others to have suffered any injury, arising from the abuse that was the subject of his evidence.
[42]Rajakaruna [No 2] (2006) 15 VR 592, 607 [49] (Redlich JA); [2006] VSCA 277.

The ‘improbabilities’ on which the applicant relied

The first, and perhaps principal, improbable feature of the prosecution case, the applicant submitted, arose from the lack of any evidence that the complainant had suffered any injury, or apparent sign of injury, as a consequence of the abuse, notwithstanding the extreme nature of the alleged abuse, the circumstances in which it occurred (including the lack of lubrication), and the expert evidence as to the size of the applicant’s penis. Thus, as Kaye JA observes,[43] the jury was required to proceed on the basis that, notwithstanding the nature of the alleged abuse, the complainant did not suffer any injury, he was not observed by others to have been acting in a manner which might be consistent with him suffering any pain or discomfort as a result of the abuse, and relevant witnesses, such as his mother, did not observe any other sign, such as bleeding on his clothing, which would be consistent with him having been subjected to the abuse.
[43]See [152] above.

In that regard, Kaye JA concludes that:

[I]n view of the nature of the anal abuse alleged, the size of the applicant’s penis, the frequency of the abuse, and the manner in which it was alleged to have been committed, the state of the evidence was such that it must be concluded that it was quite improbable that the complainant did not suffer anal injury, or observable physical discomfort, as a result of the abuse described by him. In other words, the evidence at the trial was such that the jury, acting rationally, could only have regarded the lack of such injury or apparent injury to have weighed quite substantially against the probability of the complainant’s description of the abuse.[44]

[44]See [157] above.

I respectfully disagree. This conclusion turns on a number of underlying propositions that require more detailed examination.

First, this conclusion turns on the proposition that the applicant ‘fully penetrated’ the complainant’s anus, presumably on each and every occasion on which the events were said to have occurred. However, the complainant gave evidence that he could not see the applicant’s penis during the course of the anal penetration he described. In my view it is entirely possible that a child may describe penetration as ‘full’ or ‘complete’ penetration in circumstances where that did not in fact occur. That is, a child (or indeed an adult) might experience penetration in such a way as to lead them to describe it as ‘full penetration’ even where the entire penis does not in fact enter the anus. That is simply a matter of common sense. But it is also supported by Dr Smith’s evidence that, in relation to the allegation of oral penetration, the complaint’s ‘perception of the depth of penetration … might have been inaccurate’. There is no reason why that remark would not apply equally to anal penetration.

Ultimately both experts were pressed on whether injury was likely, had the offending occurred in the manner described by the complainant — that is, with the applicant’s entire penis penetrating the complainant’s anus. But given the potential for a child to mis-describe the extent to which he or she was penetrated, it was open for the jury to conclude that the degree of penetration was not as extensive as the complainant had perceived it to be. If that were so, then the evidence of the experts as to the likelihood of injury if full penetration occurred — or the unlikelihood of full penetration occurring without the complainant suffering injury — cannot be regarded as a ‘solid obstacle’ to conviction. While it would have been open to the jury to have relied upon the absence of injury to reason to an acquittal, it was equally open to them to put that to one side, given a common sense approach to a child’s perception of penetration.

The second ‘improbability’ relied upon by the applicant was the fact that the complainant stated that he screamed in distress on the relatively frequent occasions on which the applicant was said to have penetrated him. It was said by the applicant that this would have been likely to have attracted the attention of neighbours, or persons walking past the house. Yet on no occasion did a neighbour, or a passer-by, inquire about or investigate a child screaming in distress.

This ‘improbability’, too, turns on some underlying matters. First, it turns on the assumption that the complainant’s screams were loud enough to be heard outside the house. Second, it turns at least in part on the assumption that those screams could be heard inside other houses, in circumstances where there was no evidence as to the distance of such other houses from the house in which the abuse was occurring, or the materials from which those houses were made, in terms of the degree to which they might have been relatively ‘soundproof’. Third, it turns on the assumption that there were passers-by, or neighbours home, on the occasions on which the abuse occurred. Finally, it turns on an assumption that neighbours or passers-by will, or are likely to, investigate or make inquiries as to a child’s screams. That assumption might depend on the third party’s perception of the nature of the screams. Further, many people might be disinclined to ‘get involved’ in what might be perceived as a ‘family matter’. The jury was not required to make these assumptions, however. It was open to the jury to reason that one or more of those assumptions was false. Ultimately, I do not regard this aspect of the complainant’s account as improbable.

Third, the applicant relies on the unlikelihood of him being able to penetrate the complainant’s mouth with his penis to the extent described by the complainant at all, or at least without the complainant gagging, choking or coughing. As noted above,[45] Dr Smith’s evidence was that the complainant’s perception of the depth of penetration might have been inaccurate. Again, common sense supports that conclusion. It is not at all unlikely that, as a child, the complainant might have perceived the applicant’s penis as being ‘in the whole way’ if it largely filled his mouth, even if that did not involve the entire penis being in his mouth. Nor does the complainant’s description of his nose being pressed up against the applicant’s body render this aspect of his account improbable. Again, it was open for the jury to conclude that the degree of penetration was not as extensive as the complainant had perceived it to be. If that were so, then the evidence of the experts as to the likelihood of gagging, coughing or choking, or even of the unlikelihood of full penetration occurring, cannot be regarded as a ‘solid obstacle’ to conviction.
[45]See [244] above.

The next ‘improbability’ concerned the events on the evening of the applicant’s wedding to the complainant’s mother. The complainant gave evidence that the applicant engaged in oral sex with him, and that the applicant ejaculated while his penis was in the complainant’s mouth. At the time, the applicant’s best friend, DS, was nearby in the same room. The complainant gave evidence that DS was asleep at the time. The applicant contends that it is somewhat surprising that DS was not woken or otherwise disturbed by the incident. I accept that this was improbable. However, it does not follow that this was a solid obstacle to the jury accepting the complainant’s account. As Kaye JA observes,[46] it is the experience of the courts that sexual abuse is not uncommonly perpetrated in circumstances in which the offender ran a risk of detection.[47] There are many cases of brazen offending; and it was open to the jury to conclude that this offending occurred, even though DS was sleeping nearby.
[46]See [162] above.
[47]See, eg, Schulz v The Queen [2019] VSCA 179, [93] (Maxwell P, Niall and Weinberg JJA); O’Brien (a pseudonym) v The Queen [2014] VSCA 94, [67] (Nettle JA).

Further, this improbability would bear principally upon the single incident to which it related. It ought not be cumulated with the other alleged improbabilities so as to conclude that, for example, the offending at the applicant’s mother’s house, or the karate incident, were so improbable that a reasonable doubt must arise as to whether that offending occurred. In that sense it was not a ‘compounding improbability’ (noting again that I deprecate the use of that phrase). Rather, it would be relevant to the other offending in the sense that, if the jury rejected the complainant’s account of this offence, it would potentially cast doubt on the complainant’s evidence in relation to the other alleged offending. However, I do not consider that this single improbability, taken alone, was such as to have required a jury, acting rationally, to have had a doubt in relation to this offence.

I also accept, as Kaye JA observes,[48] that the jury was obliged to take into account the forensic disadvantage to the accused by reason of the fact that DS had subsequently died. They were directed to do so, and there was no reason to think that they did not adhere to the trial judge’s directions. Further, as already noted,[49] no permanent stay was sought on the basis that DS had died.
[48]See [162] above.
[49]See [235] above.

The next alleged ‘improbability’ is that the abuse that was said to have occurred at the home of JK and MM occurred when they were both absent at the same time. This was said to be improbable because the complainant’s evidence was that when he visited their house with the applicant, both JK and MM were excited, and would make a fuss over him. They treated the complainant as if he were their grandson. So much may be accepted. But that simply does not render the offending said to have occurred at their house, in their absence, improbable. Such a conclusion would involve acceptance of the proposition that it was unlikely that the applicant ever took the complainant to JK and MM’s house to mow the lawn when JK and MM were not home. The applicant accepted that JK and MM did leave their home from time to time (although it was difficult for them to do so). In my opinion there is no evidence to demonstrate that it was improbable that the applicant took the complainant to JK and MM’s house on occasions when they were not home.

Kaye JA also notes that if the applicant did take the complainant to JK and MM’s house when they were absent, there was no evidence that the applicant had any knowledge of when they would both be returning to the house.[50] Of course, the complainant could not give evidence as to what the applicant might have known about when JK and MM would be returning. And it is unsurprising that the applicant did not give such evidence, given he denied that the events in question occurred at all. But it is not implausible or improbable that if he had taken the complainant to JK and MM’s house when they were absent, the applicant may have known where they had gone and for what period they were likely to be absent. And, while it may be accepted that this offending involved some risk that JK and MM might return while the abuse was occurring, again it must be accepted that offending accompanied by a risk of detection is not uncommon in the courts’ experience.
[50]See [166] above.

A similar analysis applies to the proposition that, when the applicant abused the complainant in his bedroom at the family home, while his mother was out shopping, on no occasion did the complainant’s mother return home while the abuse was occurring, or in sufficient time to notice the aftermath of it. While the complainant’s evidence was that his mother ‘never specified’ when she would return home after completing the shopping, that must be understood as evidence that she never specified to him. The complainant could not give evidence of what his mother may have said to the applicant about her plans, or about what the applicant knew or did not know about the time of the complainant’s mother’s likely return. Again, I do not regard this as an improbability.

Further, Kaye JA observes that the fact that the applicant was able to perpetrate the abuse in such circumstances on so many occasions, without being detected, ‘necessarily adds to the degree of improbability’ of the prosecution case.[51] Again I must disagree. Regrettably, many incest cases involve ongoing offending in the family home for years that goes undetected.
[51]See [168] above.

The next ‘improbability’ concerned the ‘karate incidents’. Kaye JA considers that this offending would have been ‘quite awkward’, due to the fact that the applicant was wearing karate trousers and a ‘protector’.[52] So much may be accepted, but that does not make it improbable. Kaye JA also considers it ‘somewhat curious that the applicant would have chosen such an uncongenial method of perpetrating the abuse, in view of the complainant’s evidence that the applicant had been able to frequently commit that abuse with apparent impunity in the family home’, and that he would have done so while parked in a vehicle in a public street.[53] I must again disagree. Although the applicant had frequently abused the complainant in the family home, there is no suggestion that he could do so at any time, let alone with ‘impunity’. Rather, the evidence was that he did so when the complainant’s mother was not home. The complainant’s evidence suggested opportunistic offending, engaged in when he and the complainant were alone together. The drive home from karate classes would have been another such opportunity.
[52]See [169] above.
[53]See [169] above.

Next, the applicant contends, and Kaye JA accepts, that the complainant’s evidence was ‘internally inconsistent’ in relation to his delay in complaining about the offending. Of course, as Kaye JA accepts,[54] the jury was quite properly directed that some people do not complain immediately of sexual offending. Nonetheless, he considers that the complainant’s ongoing relationship with the applicant after the offending had ceased, and the complainant’s evidence about that ongoing relationship, was internally inconsistent in material respects.[55] This, his Honour concludes, is another circumstance adding to the overall improbability of the prosecution case.
[54]See [170] above.
[55]See [170] above.

Again, I have the misfortune to disagree. It is the experience of the courts — reflected in s 52 of the Jury Directions Act — that people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence. It may appear surprising that the complainant maintained a relationship with the applicant after the abuse had ceased. But, to use Kaye JA’s words, ‘it is the experience of the law that young victims of sexual abuse can conduct themselves in a manner which is quite counterintuitive’.[56] That is the case here. The psychological complexities of the relationship between abused and abuser, both during and after the abuse, are such that, in my opinion, this cannot be said to be render the abuse improbable, even if it is surprising to those who have not endured abuse of this kind.
[56]See [176] above .

Finally, the applicant relied upon certain other inconsistencies in the complainant’s evidence. These included the following:

(g) The complainant made notes prior to his visit to the police, in which he had written that the applicant ‘always’ watched pornography when raping him, but in cross examination he accepted that most of the abuse occurred in the bedroom where there was no access to the internet. Nor did he mention pornography in his evidence in chief about the offending.

(h) In his statement to the police and at the committal the complainant had said that the karate incidents occurred some time between 2002 and 2005, when he was aged between 9 and 12; whereas in his evidence at trial he stated that he was 10 when this offending occurred.

(i) The complainant’s mother said that when the complainant first spoke to her about the offending, in January 2015, he said that the abuse commenced in the family home. In contrast, in his own evidence, the complainant said that the first time upon which the applicant abused him at JK and MM’s home.

Of these, only one — the pornography issue — is, in my view, properly to be regarded as an inconsistency in the complainant’s evidence. I accept that that is an inconsistency in the complainant’s account of events. However, he was cross-examined about the notes and he gave an explanation for them, and for the difference in the evidence he later gave at trial. The jury had the advantage of hearing and seeing him give that evidence. In my view it was open for them to accept that explanation. That is particularly so in light of the fact that, as they were directed, and as is recognised by s 54D of the Jury Directions Act, that experience shows that people may not describe a sexual offence in the same way each time, that trauma may affect how people recall events, that it is common for there to be differences in accounts of a sexual offence, and that both truthful and untruthful accounts of a sexual offence may contain differences. It was, in that context, for the jury to decide whether or not this inconsistency in the complainant’s account affected his credibility and reliability and whether they believed him. In my view it was open for them to conclude that this inconsistency was not fatal to accepting his evidence.

As for the other two matters, the second concerns the timing of the ‘karate incidents’. Initially the complainant gave a range of years in which (and ages at which) the offending occurred. Later, he gave definite evidence of a single age, stating that he was certain that it occurred when he was 10. It may immediately be noted that that age fell within the range he had initially identified. It thus is not, strictly speaking, an inconsistency in and of itself. Rather, the inconsistency is the initial lack of certainty as to the timing of the events in issue, followed by a later certainty that he was 10. An inconsistency of that kind is relatively minor. Again one must bear in mind the matters set out in s 54D of the Jury Directions Act. Further, it would be open to a jury to have reasoned that the impending trial might prompt reflection on, and thus greater certainty about, the offending.

The third suggested ‘internal inconsistency’ involves a disparity between the complainant’s account of where the first occasion of offending occurred, and his mother’s account of what he told her about where the first occasion of offending occurred. His evidence was that the first incident was at JK and MM’s house; whereas his mother’s evidence was, the applicant submitted, that the complainant had told her that the first incident was at the family home. Strictly speaking, this is not an ‘internal inconsistency’. Rather, it is an inconsistency (if it be one at all) between the complainant’s evidence and his mother’s evidence. Of course, the complainant’s mother might have misremembered what she was told; that is not at all implausible, given that she would undoubtedly have been shocked to hear of what had occurred. That is, the jury might have believed the complainant and not his mother on this issue. And, again, one must bear in mind the matters set out in s 54D of the Jury Directions Act. Even if it be accepted that the complainant told his mother that the first incident occurred at the family home, but later gave evidence that it occurred at JK and MM’s home, that would not be fatal to his credibility. It would not mean that the jury must have concluded that there was a reasonable doubt about the applicant’s guilt.

It is also relevant to observe at this point that the jury was entitled to rely on the complainant’s complaints to others about what had occurred. The complainant’s then girlfriend, WA, gave evidence that in 2013 the complainant told her that he had been abused and raped by Mr Cavanaugh when he was a child.[57] This was said as an explanation for why the complainant did not want to have sex with WA on that particular occasion. WA pressed him as to why, and he said it was because his stepfather had sexually assaulted him. WA described him as distraught when the conversation occurred. Further, the complainant had been in a sexual relationship with WA for three and a half years, but had refused to have sex with her for around three months. WA’s evidence about the circumstances of the complaint supports the credibility of what the complainant told her. The complainant also told his mother that Mr Cavanaugh had raped him since he was 8 years old. That conversation occurred in 2015.
[57]See, eg, [52], [75] above.

Kaye JA gives little weight to the complaint evidence. However, the evidence came from two unrelated people, and the complaints were separated in time by over a year and were quite different in nature and in the circumstances in which they were made. The prosecution did not challenge the account given by either of those witnesses. If the jury accepted the evidence of WA and the complainant’s mother, it provided evidence that supported the complainant’s account of what had occurred. And, as the trial judge directed the jury, it was also relevant to an assessment of his credibility. The trial judge also told the jury that they were not to treat this evidence as independent of the complainant. In my view this evidence could quite properly have played a role in the jury’s assessment of whether the charges were proved, and thus ought be given some weight in assessing whether it was open to the jury to reach a verdict of guilty.

I note for completeness that I agree with Kaye JA in so far as he has concluded that the prosecution’s submissions concerning what were said to be inconsistencies in the applicant’s evidence cannot be sustained.[58] That, however, is not sufficient for a conclusion that it was not open to the jury to find him guilty.
[58]See [183]–[193] above.

Finally, I note that the parties did not submit that this Court should view the recordings of the evidence and, in light of the High Court’s remarks in Pell concerning whether and when an appellate court ought to view recordings of the evidence from the trial,[59] I consider it would not have been appropriate for us to do so in this case. It was not said that there was anything particular in the video-recordings that could only be discerned visually or by sound. In those circumstances, it is difficult for this Court to form a view on the applicant’s credibility and certainly difficult for us to substitute our own view for that of the jury, which saw and heard the applicant give his evidence.
[59](2020) 268 CLR 123, 144 [36] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.

Conclusion

Ultimately, as explained above, I do not accept that most of the ‘improbabilities’ identified by the applicant are in fact improbabilities, let alone ‘compounding improbabilities’. Of those identified, I accept that the offending in the presence of DS was improbable, and I also accept that the applicant suffered a forensic disadvantage by reason of DS’s death, as well as by reason of JK’s and MM’s deaths. However, I do not consider that these matters were such as to mean that the jury, acting rationally, must have entertained a doubt as to the applicant’s guilt.

As to the deaths of three potential witnesses, as I explained above I do not consider that this forensic disadvantage was one that, alone, was sufficient to render the trial unfair. Nor did the applicant contend that to be the case. Rather, his case was that this disadvantage together with other ‘improbabilities’ rendered the verdict unsafe. But once most of those ‘improbabilities’ are rejected, the cumulative effect of the matters on which the applicant relies is greatly reduced.

Further, the members of the jury were properly directed in relation to forensic disadvantage and the experience of the courts is that juries ordinarily heed the directions they are given.[60] As Maxwell P and Priest JA observed in Huynh v The Queen, the system of criminal trial by jury must proceed on the supposition that jurors will follow the directions that are given to them.[61] Their Honours quoted the following statement by Gleeson CJ in Gilbert v The Queen:

The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge’s directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one — accused, trial judge or member of the public — could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.[62]

[60]See, eg, Dun (a pseudonym) v The Queen [2021] VSCA 286, [40].

[61][2020] VSCA 222, [44] (Priest JA, Maxwell P agreeing at [1]).

[62](2000) 201 CLR 414, 425 [31]; [2000] HCA 15.

As to the inherent improbability that the offending the night before the applicant’s wedding to the complainant’s mother occurred in the presence of DS, who was sleeping, the members of the jury had the advantage of seeing and hearing the complainant and the applicant give evidence about that night (albeit via a recording). They also had the advantage of collective deliberation. This Court had none of those advantages.

As will be apparent, the applicant’s case in this Court was, in substance, an attack on the credibility of the complainant. So too was his case at trial, where defence counsel relied on the same series of contentions as to inconsistency and improbability to suggest to the jury that it was ‘reasonably possible’ that the complainant had been ‘telling you a tale’. The attack on credibility is, of course, unsurprising. As the trial judge told the jury in her charge, the issue in the trial was whether the prosecution had proved beyond reasonable doubt that ’the alleged offending actually occurred’. In order to convict, her Honour said, the jury had to be satisfied beyond reasonable doubt that the complainant’s evidence was ‘honest, accurate and reliable’.

It is necessary, therefore, to recall the High Court’s observation in Pell that ‘the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community’.[63] Thus, ‘just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box’.[64]
[63](2020) 268 CLR 123, 144 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
[64]Ibid 144–5 [37].

In the present case I note that, in the usual way, the jury were invited to draw on their experience and common sense in deciding the issues in the trial. For example, the prosecutor submitted to them that the key to deciding whether the complainant was telling the truth was to ‘bring together … your life experience, and importantly your common sense’. Similarly, the trial judge directed the jury that, in deciding whether a witness had told the truth, ‘[th]ere is no special skill involved. You need to use your common sense and collective life experience’. On the appeal, counsel for the applicant conceded that the jury could draw on their own experience in considering: (a) the possibilities about the degree of penetration; (b) whether someone in the complainant’s position would or would not be likely to ‘speak out’ about the offending; and (c) how probable it was that an 8 year old would be allowed to push a lawnmower. The corollary of these matters, which counsel also accepted, is that appellate judges have no special aptitude in making these judgments.

The jury assessed the witnesses after seeing them give their evidence. The members of the jury brought to the task their collective common sense and experience. I see no basis for disturbing their assessment and substituting a different assessment, particularly when I have not had the benefit of seeing and hearing the witnesses give their evidence.

For the above reasons, in my opinion it was open for the jury to reach the verdict it reached, on the evidence before it. I would dismiss the appeal.

- - -

[2021] VSCA 347

13 December 2021