Clifton Snyder (a pseudonym)[1] v The Queen

[2022] VSCA 140

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0171

CLIFTON SNYDER (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, KYROU and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2022
DATE OF JUDGMENT:	20 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 140
JUDGMENT APPEALED FROM:	DPP v Snyder (a pseudonym) [2021] VCC 1214 (Judge Doyle)

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CRIMINAL LAW – Appeal – Conviction – Judge alone trial – Eight charges of sexual penetration of a child under 16 – Complainant died after giving evidence at committal and before trial – Whether judge erred in admitting and relying upon complaint evidence, in the application of expert evidence, in approach to complainant’s prior inconsistent statements or in rejecting unchallenged evidence of complainant’s mother – Whether verdicts unreasonable or cannot be supported having regard to evidence – Leave to appeal refused – Evidence Act 2008, s 65; Criminal Procedure Act 2009, ss 420D, 420E, 276(1)(a) – Filippou v The Queen (2015) 256 CLR 47; Higgins v The Queen [2020] NSWCCA 149 considered.

CRIMINAL LAW – Appeal – Sentence – Eight charges of sexual penetration of a child under 16 – Offending in 1993 and 1994 – Total effective sentence of 4 years and 6 months’ imprisonment – Whether judge erred in manner in which he took into account conduct which did not result in conviction or in finding connection between offending and complainant’s psychiatric difficulties – Whether judge erred in concluding that totality was to be accorded less weight because applicant not remorseful and in reducing weight given to delay due to applicant contesting ‘every aspect of the case’ – Whether sentence manifestly excessive – Leave to appeal refused.

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Counsel
Applicant:		Ms R Shann QC with Ms B East
Respondent:		Mr J C J McWilliams and Ms K Crennan
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
T FORREST JA:

Introduction

1. An indictment filed in the County Court initially charged the applicant with 36 charges – six charges[2] of committing an indecent act with a child under 16[3] and 30 charges[4] of taking part in an act of sexual penetration with a child under 16[5] – in the period between late 1993 and late 1994. 

   [2]Charges 2, 7, 26, 29, 33 and 34.

   [3]Crimes Act 1958, s 47(1).

   [4]Charges 1, 3, 4 to 25, 27 to 28, 30 to 32, 35 and 36.

   [5]Crimes Act 1958, s 45.

2. ‘EW’, the complainant, was born in December 1978, and was aged 14 to 15 years at the time of the alleged offending.  The applicant, born in September 1971, was aged between 21 and 24 years when he allegedly committed the offences against her.     

3. EW made two statements to police, on 24 May 2018 (the ‘first statement’) and 19 June 2018 (the ‘second statement’) respectively.[6]  She also gave evidence at committal proceedings on 18 December 2018, during which she affirmed the truth of her two statements.  Sadly, EW suicided a few months after giving that evidence, in March 2019.

   [6]The statements each contained an acknowledgment signed by EW in the presence of a police officer that the statement is true and correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury.  See Criminal Procedure Act 2009, s 112(1).

4. By a ruling delivered on 26 November 2020, the trial judge admitted EW’s statements and committal cross-examination into evidence under s 65(3) of the Evidence Act 2008 (‘the Act’).  On 16 April 2021, this Court refused the applicant leave to appeal that interlocutory decision.[7]

   [7]Snyder (a pseudonym) v The Queen [2021] VSCA 96 (Priest, Kyrou and Kaye JJA).

5. A few days later, on 20 April 2021, the applicant sought, and was granted, a trial by judge alone pursuant to s 420D of the Criminal Procedure Act 2009 (‘CPA’).

6. The next day, 21 April 2021, the trial judge permitted the prosecution to amend the indictment by deleting 12 charges: 10 charges of taking part in an act of sexual penetration with a child under 16,[8] and two charges of committing an indecent act with a child under 16,[9] so that the applicant ultimately was tried on 24 charges – 20 of sexual penetration, and four of indecent act, with a child under 16. 

   [8]Charges 1, 8, 9, 15, 16, 21, 24, 25, 31 and 32.

   [9]Charges 26 and 33.

7. Deletion of the 12 charges required various parts of the committal transcript, upon which these charges were based, to be excised.  Ultimately, both EW’s first and second statements, and an edited audio recording of her committal evidence, were tendered as part of the prosecution case (Exhibits 1, 2 and 15 respectively), and effectively became her evidence.[10]    

   [10]A number of photographs that EW referred to in her statements, and had provided to police, were also tendered.

8. After a trial of 10 days’ duration, conducted throughout late April and mid-May 2021, on 10 June 2021 the trial judge found the applicant guilty of eight charges of sexual penetration with a child under 16 (charges 3, 4, 5, 10, 11, 12, 13 and 20) arising from four separate incidents of offending.[11] The judge acquitted the applicant, however, of a further 12 charges of sexual penetration with a child under 16,[12] and four charges of committing an indecent act with a child under 16,[13] relating to a further nine alleged incidents.

   [11]DPP v Snyder(a pseudonym) (Unreported, County Court of Victoria, Judge Doyle, 10 June 2021) (‘Reasons’).

   [12]Charges 6, 14, 17, 18, 19, 22, 23, 27, 28, 30, 35 and 36.

   [13]Charges 2, 7, 29 and 34.

9. Following a plea conducted over three days in August 2021, on 26 August 2021 the trial judge sentenced the applicant to a total effective sentence of four years and six months’ imprisonment, with a non-parole period of two years and six months, in the manner set out below.[14]

   [14]See [145] below.

10. The applicant now seeks leave to appeal against both conviction and sentence.  As to conviction, the applicant relies on six grounds,[15] formulated as follows:[16]

    1.The Trial Judge erred in his reliance on the evidence of [CK].

    2.The Trial Judge erred by admitting [CK’s] evidence of the purported statement.

    3.The Trial Judge erred in his application of the expert evidence.

    4.The Trial Judge erred in his approach to the prior inconsistent statements of the complainant.

    6.The Trial Judge erred in rejecting the unchallenged evidence of the complainant’s mother regarding Incident 2.

    8.The verdicts are unreasonable and cannot be supported having regard to the evidence.

    [15]The applicant abandoned two grounds:

    5    The Trial Judge erred in his failure to consider the compounding effect of all the matters tending against the reliability of the complainant.

    7    The Trial Judge erred by providing inadequate reasons as to how he used the tendency evidence in relation to Incident 9.

    [16]The grounds of appeal with respect to sentence are set out below at [146].

11. For the reasons that follow, we would refuse both applications.

    CONVICTION

12. It is convenient first to consider the application for leave to appeal against conviction.

The prosecution case

1. As we have said, the prosecution alleged that the applicant perpetrated a number of sexual offences against EW in the period between late 1993 and late 1994, when EW was aged 14 to 15 years, and the applicant was aged between 21 and 24 years.  Hence, the first charge on the amended indictment, charge 2, alleged that the applicant committed an indecent act with a child under 16 on 13 November 1993; and the last charge, charge 36, alleged that the applicant took part in an act of sexual penetration with a child under 16 between 1 November and 30 November 1994.

2. The applicant did not dispute at trial that he and EW were in a relationship both prior to, and following, EW’s sixteenth birthday, when he was in his early twenties.  There were two main issues: first, whether the relationship involved anything more than ‘kissing’ and ‘holding’ (that is, whether the specific sexual acts alleged occurred); and, secondly, if the alleged sexual acts occurred, whether they occurred prior to EW’s sixteenth birthday.

3. For the purposes of the prosecution case, the 24 charges on the amended indictment were grouped into 13 separate ‘incidents’.  Hence, as we have mentioned, the eight charges upon which the judge found the applicant guilty comprised four incidents:

   ·    Incident 2 (charges 3, 4 and 5);

   ·    Incident 4 (charge 10);

   ·    Incident 5 (charges 11, 12 and 13); and

   ·    Incident 9 (charge 20).

   And the 16 charges upon which the judge acquitted the applicant comprised nine incidents:

   ·    Incident 1 (charge 2);

   ·    Incident 3 (charges 6 and 7);

   ·    Incident 6 (charge 14);

   ·    Incident 7 (charge 17);

   ·    Incident 8 (charges 18 and 19);

   ·    Incident 10 (charge 22);

   ·    Incident 11 (charge 23);

   ·    Incident 12 (charges 27, 28, 29 and 30); and

   ·    Incident 13 (charges 34, 35 and 36).

4. It will therefore be convenient to summarise the evidence that relates to both the verdicts of guilty and not guilty by reference to the 13 incidents alleged.

5. EW’s first statement was principally devoted to describing the various incidents that founded the charges upon which the applicant was tried.  Her second statement was mainly concerned with correcting ‘an error in the timeline’, and identifying 12 photographs (which became Exhibits 3 to 14 inclusive).  The narrative that follows in summary form is largely drawn from her first statement.

EW and the applicant were neighbours

1. EW lived in a north-eastern Melbourne suburb with her mother, step-father and two siblings.  When she was aged 14 years, the applicant, then aged 21, moved into the house opposite.  Shortly after moving in, the applicant became friendly with EW’s mother and would frequently visit her at home.  The alleged offending commenced soon afterwards.

Incident 1: Day off school (charge 2) – Not guilty

1. EW injured herself on 12 November 1993, and had the next day off school.  She was alone in the house when the applicant visited.  They watched a movie.  The applicant then kissed her passionately and touched her breasts and vagina.  They then went to the applicant’s house and watched another movie.  At one point during the movie, the applicant took EW into his bedroom, stimulated her clitoris with his fingers, and rubbed his penis on her stomach until he ejaculated (charge 2 – indecent act with a child under 16). 

2. After these events, the applicant wrote love letters to EW daily, and asked her mother’s permission to ‘date’ her.  EW’s mother agreed, but her step-father stipulated that there was to be ‘no sex’, only ‘petting’.

Incident 2: Red Hill wedding (charges 3, 4 and 5) – Guilty

1. Further incidents of sexual activity occurred around the time of EW’s fifteenth birthday, in December 1993.  After she and the applicant attended a wedding in Red Hill together, the applicant took EW to his home and penetrated her vagina with his fingers (charge 4 – sexual penetration of a child under 16); performed cunnilingus on her (charge 3 – sexual penetration of a child under 16); and penetrated her mouth with his penis to the point of ejaculation (charge 5 – sexual penetration of a child under 16). 

Incident 3: House-sitting in Wonga Park (charges 6 and 7) – Not guilty

1. Early in the relationship, the applicant looked after a house in Wonga Park.  At one point, he took EW to the lounge room which had an open brick fireplace and a rug on the floor.  When they were both naked in the lounge room he began kissing her and then inserted his fingers into her vagina (charge 6 – sexual penetration of a child under 16).  He then had her masturbate him (charge 7 – indecent act with a child under 16). 

Incident 4: ‘Fisting’ (charge 10) – Guilty

1. In early 1994, the applicant started shaving the complainant’s legs.  Not long after this activity commenced, EW and the applicant were naked on his bed.  He rubbed an ice block on EW’s body and sucked on her breasts.  EW laid on top of the applicant and masturbated him whilst he inserted his fingers into her vagina.  The applicant then got onto his hands and knees, and repositioned EW with her head at the bottom of the bed.  He then forced his fist into EW’s vagina and began a punching motion (charge 10 – sexual penetration of a child under 16), which pushed her off the bed.  EW screamed and realised she was bleeding from the vagina.

Incident 5: House-sitting (charges 11, 12 and 13) – Guilty

1. In January 1994, the applicant was at a family friend’s house looking after their animals while they were on holidays.  During this period, EW and the applicant went to one of the bedrooms.  EW was on the floor naked and masturbated the applicant while he masturbated her.  They performed oral sex on each other (charges 11 and 12 – sexual penetration of a child under 16).  The applicant then inserted two fingers into her vagina (charge 13 – sexual penetration of a child under 16), before ejaculating.

Incident 6: Applicant’s parents’ spa (charge 14) – Not guilty

1. The applicant’s parents had an outdoor spa at their home.  When his parents were away, the applicant and EW used the spa.  The first time they did this was in February or March 1994, when EW was aged 15 years.  They got into the spa naked and kissed each other.  The applicant turned EW around, so she was on her knees. He got behind her and pulled her buttock cheeks aside so he could put his penis into her anus.  His penis was just inside and hurt as soon as he put it in (charge 14 – sexual penetration of a child under 16).  She screamed and he stopped.  This was the first time the applicant tried anal sex with her.

Incident 7: House-sitting (charge 17) – Not guilty

1. On another occasion in February 1994, before EW turned 16, the applicant was minding the home of holidaying friends, feeding their animals while they were away.  On one occasion after feeding the pets, the applicant took EW into the master bedroom.  They stripped naked and were on the floor just outside the ensuite.  The applicant touched EW’s vagina with his fingers, and had her masturbate his penis with her hand.  He then guided EW’s head onto his penis, which she sucked until he ejaculated into her mouth (charge 17 – sexual penetration of a child under 16).

Incident 8: Friends’ boat (charges 18 and 19) ­– Not guilty

1. The friends for whom the applicant house-sat invited the applicant and EW to sail on their yacht.  EW thought the yacht was moored in St Kilda, and was pretty sure the visit was in March 1994.  They headed out to the south channels where the seals are, and stayed overnight on the yacht moored at Queenscliff.  During the night, sexual activity occurred multiple times.  The applicant penetrated EW’s vagina with his fingers (charge 18 – sexual penetration of a child under 16).  He also performed oral sex on her, and she on him, which caused him to ejaculate on his stomach (charge 19 – sexual penetration of a child under 16).  A tendered photograph shows EW on the boat in summer clothing with a fish that she caught on the trip.

Incident 9: Numurkah (charge 20) – Guilty

1. At Easter time in 1994, EW was on holiday with her family in Numurkah.  The applicant drove to meet the family and stay for one night.  An argument occurred between the applicant and EW’s parents about their relationship.  The applicant slept in the lounge room and EW in a room with her sister.  When everyone was asleep, EW went to the lounge room.  She and the applicant were naked from the waist down.  The applicant penetrated her vagina with his fingers (charge 20 – sexual penetration of a child under 16) and had her simultaneously masturbate him.

Incident 10: Cemetery (charge 22) – Not guilty

1. The applicant took EW for a driving lesson at a Lilydale cemetery around dusk on a Sunday in May 1994.  He yelled at her because she could not work the clutch.  She became upset and cried.  The applicant apologised and leaned across and began to kiss her.  He took his pants down to above his knees and guided her hand to masturbate him, and he placed his hand beneath her underwear and began rubbing her clitoris and labia. EW then gave the applicant oral sex (charge 22 – sexual penetration of a child under 16).  At the moment of ejaculation EW jumped back, and the applicant ejaculated on himself.

Incident 11: Eildon (charge 23) – Not guilty

1. The applicant’s father’s boss had a holiday house at Eildon.  In July 1994, the applicant and EW stayed at this house with his parents.  On the Saturday after they arrived, they spent the day in bed together.  EW was surprised that the applicant’s parents did not tell them to get up.  The applicant penetrated EW’s vagina with his fingers at least four or five times that day (charge 23 – sexual penetration of a child under 16).

Incident 12: Bonnie Doon (charges 27, 28, 29 and 30) – Not guilty

1. In August 1994, the applicant took EW to stay at a hotel in Bonnie Doon.  Late at night they got into the hotel spa naked.  They kissed and masturbated each other (charge 29 – indecent act with a child under 16), and the applicant put his fingers into her vagina to arouse her (charge 27 – sexual penetration of a child under 16).  The applicant then turned EW around, grabbed her by her hips and held his penis to guide it into her anus.  He only got it in a little way (charge 28 – sexual penetration of a child under 16).  She screamed because of the pain and pressure, and the applicant stopped.  When they went back to the hotel room, they remained naked.  The applicant kissed EW and put his fingers into her vagina (charge 30 – sexual penetration of a child under 16), and they watched a pornographic film.

Incident 13: Lorne (charges 34, 35 and 36) – Not guilty

1. EW stated that in November 1994, for their 12-month ‘anniversary’, the applicant took her down the Great Ocean Road for two nights, staying at a hotel in Lorne.  The applicant put rose petals in the spa, and they both got into the spa naked and mutually masturbated each other (charge 34 – indecent act with a child under 16).  The applicant put his fingers inside EW’s vagina (charge 35 – sexual penetration of a child under 16), before he turned her around and tried to penetrate her anally.  He managed to penetrate her, causing incredible pressure and pain.  EW could not tolerate it, so the applicant stopped (charge 36 – sexual penetration of a child under 16).

Aftermath

1. Due to a deterioration in the applicant’s relationship with EW’s mother and step-father, EW moved out of the family home in September 1994.  She took up residence with the applicant’s parents (where she remained until July 2000).  A few months later, on Christmas Eve 1995, the applicant broke off the relationship with her ‘out of the blue’.

2. EW got married in 2005 when aged 27, and had children in 2009 and 2010.  In 2011 she heard via media and social media that the applicant had been charged with child sex offences.  She was ‘mortified’ and ‘humiliated’, and contacted the Office of Public Prosecutions (‘OPP’).  In turn, the OPP put her in touch with Detective Matthew Phelan.  After talking to him, however, EW decided that ‘the time was not right’ to report what had happened to her, because she was pregnant and had a young family.  

3. According to EW, a chance meeting at the Blood Bank in February 2014 with the mother of one of the applicant’s male child victims ‘triggered’ something inside her.  And according to EW’s husband, she had a breakdown after that chance meeting, became suicidal, and was admitted to a psychiatric hospital a few days later.  During that hospitalisation at Delmont Hospital – where she underwent electro-convulsive therapy – EW wrote a ruminative letter to the applicant, dated 24 April 2014 (‘the Delmont letter’), although it was never sent.     

1. Four years later, in April 2018, EW voluntarily admitted herself to the mental health unit of Epworth Hospital.  Whilst there, she made some notes about the applicant’s sexual abuse (‘the Epworth notes’), and ‘decided it was time to do something about it’.  She therefore telephoned a district Sexual Offences Unit on 26 April 2018, and spoke to Detective Senior Constable Amber Coutts.  EW’s first statement, taken by Detective Coutts on 24 May 2018, was made using the Epworth notes.

Ground 1:  The judge’s reliance on CK’s evidence

1. In our opinion, the first ground – which impugns the trial judge’s use of the evidence of  a prosecution witness, ‘CK’ – lacks substance.

2. CK was a friend of EW.  She gave evidence that she and EW first met at High School during Year 7 when aged 12 years, and that they maintained a friendship until EW’s death in 2019.  CK said they spent a lot of time together, and would sleep over at each other’s houses.

3. At some stage during Year 9, when they were aged 14, EW showed CK letters that the applicant had written to her that were ‘a bit mushy’ and ‘definitely [had] a romantic connotation’.  CK’s evidence was that EW would make comments concerning her relationship with the applicant.  Her evidence-in-chief on the topic included the following:[17]

   [PROSECUTOR]:  And what sort of comments were they?---So, like um, she mainly said them when she would get upset sometimes because boys at school would say things to her and she would say … [the applicant] said we can do anything as long as we don’t have sex um, so she – she numerous times throughout schooling and after school as well, she said, ‘he said to me that as long as we don’t actually have sex, we can do anything else ‘cause that’s what people do in relationships’. …

   HIS HONOUR:  As long as we don’t have sex?---We can do anything else.

   And you said something else, because - - - ?---‘Cause – oh, ‘cause she said to me once that that’s – like he said like as long as we don’t have sex, we can do anything else ‘cause that's what sort of people do in relationships.

   …

   [PROSECUTOR]:  And did you discuss with her what she meant by as long as we don’t have sex?---Um so, obviously I was quite young and innocent back then, so I sort of said oh okay.  Like once she said that he ­– so when she told me this stuff, she never said it in this happy way, she just made a statement when she would get upset about what boys would say.  But she did say um, that he put his fist in her one day and she did tell me that he would – so she had to do things to him, but she never really explicitly explained those things.

   [17]Emphasis added.

4. CK also gave evidence that in approximately 2011, following the publication of a newspaper article, she and EW had another conversation about the sexual incident involving the applicant’s fist.  Her evidence included:

   [EW] did bring up the fist, the fist again, um, during that time.  But she didn’t actually – that – that’s the only conversation we had about the sexual thing, except for that she made – she would make – she had to – she had to do things to him, but she didn’t actually explain what they were ever to me.

5. In his reasons, the judge said that he accepted CK’s evidence that EW had told her that the applicant had said

   that they were not allowed to have sex but could do other things and that she was told this in the context of teasing by the boys at school; and I accept that she was told this in year 9 and 10 prior to the complainant turning 16. … I accept these representations were a reference to a relationship involving sexual activity.[18]

   But the judge said he was

   not prepared to act on the evidence of [CK] that the complainant told her about the fisting incident in high school.  I do accept though [CK’s] evidence that the complainant told her about the fisting incident later when they were adults, before the complainant’s psychiatric state declined after the blood bank incident.[19]

   [18]Reasons [664].

   [19]Ibid.

6. As to the use of CK’s evidence, the judge said that EW’s

   representation to [CK] in high school that she and the [applicant] could do anything other than sexual intercourse is relevant to the assessment of her reliability, in so far as she asserts a sexual relationship.  That representation, in my view, was a contemporaneous statement of the existence of a sexual relationship between her and the [applicant].  This representation rebuts the argument that on finding out about the [applicant’s] offending, the complainant transformed herself into a victim and erroneously reconstructed the relationship.[20]

   [20]Reasons [668] (emphasis added).

7. The judge also held that EW’s complaint as an adult to CK about ‘the fisting incident’ was ‘relevant to the assessment of that incident in rebuttal of the defence arguments about the complainant’s reliability arising from contamination and her breakdown and psychiatric problems which occurred after these complaints’;[21] and that her complaints as an adult about a sexual relationship with the applicant ‘demonstrate consistency about this well before her psychiatric issues’.[22]

   [21]Reasons [669].

   [22]Reasons [670].

8. In support of the first ground, counsel for the applicant submitted that the judge was wrong to rely on CK’s evidence to find that EW had made ‘a contemporaneous statement of the existence of a sexual relationship between her and the [applicant]’, this finding being critical to conviction.  Two reasons were advanced.  First, it was contended that there was no rational basis upon which it could be concluded that the statement was of the existence of a sexual relationship.  It was not, in its terms, a complaint as to what the applicant and EW were doing as compared to what they were permitted to do.  Secondly, counsel submitted that, even if the statement were capable of being construed as a description of what EW and the applicant were actually doing, there was no rational basis to find that to have been a complaint of acts beyond those admitted to by the applicant (that is, ‘kissing’ and ‘holding’).  The purported statement to CK could have been a reference to sexual acts short of the serious allegations made many years later.

9. Further, counsel for the applicant submitted that the judge was wrong to place weight on the purported statement.  CK was, counsel submitted, an unreliable witness.[23]  Indeed, a number of uncontested facts tended against the reliability of her evidence.  Principal among those was that there was a gap of approximately 24 years between the purported statement and CK’s first suggestion it was made.  That is in circumstances in which CK did not take a note and relied entirely on her memory.

   [23]See Reasons [603]–[607].

10. Answering these submissions, counsel for the respondent contended that it was well open to the trial judge, first, to accept CK’s evidence that the conversation had in fact occurred; and, secondly, to find that it constituted an acknowledgement by EW that she and the applicant were in a relationship that included sexual acts of a type that fell short of ‘sexual intercourse’.

11. In our view, the respondent’s submissions should be accepted.  We consider that it was open to the trial judge to rely on CK’s evidence in the way that he did.

12. It is important to understand that the main thrust of the attack on CK’s evidence by defence counsel at trial was its purported lack of reliability, not the use that could be made of it.  It is also important to understand that, when he considered the issue of reliability, the judge took a number of relevant considerations into account: the delay between the statements being made and CK first giving evidence of them; CK’s non-comprehension of the significance of EW’s statements when they were first made in High School; the timing and circumstances by which CK first gave evidence of the statements; the different reasoning applicable to the reliability of the representation of the existence of a sexual relationship and the reliability of the representation regarding the ‘fisting incident’; the potential for memory contamination arising from later communication; and CK’s lack of clear recall with respect to some of the conversations from 2018.[24] 

    [24]See Reasons [659]–[663].

13. Paying due heed to those factors, we are not persuaded that it was not open to the judge to accept the reliability of CK’s evidence concerning EW’s statements to her at school.  We are also not persuaded that it was not open to the judge to reject CK’s evidence – as he did – that EW mentioned the ‘fisting’ incident to her when they were at school, yet accept – as he did – that EW told her of the fisting when they were adults.

14. In our opinion, once it is accepted that it was open to the trial judge to find that EW made the statements attributed to her when at school, the contention that the judge could not have found that they constituted a representation by EW that she and the applicant were in a relationship that included sexual activities of a kind that fell short of actual ‘sexual intercourse’, is plainly untenable.  EW’s statement that she and the applicant could ‘do anything else’ as long as they did not ‘actually have sex’, was a clear reference to sexual activity.  We note in that regard that EW allegedly told CK that ‘she had to do things to [the applicant]’.[25]  Those ‘things’ that ‘she had to do’ can only have been of a sexual nature.

    [25]See [39] above.

15. Finally, we also consider that it was open to the judge to find that EW’s statement to CK as an adult about ‘fisting’ was capable of being used to demonstrate consistency, in that EW had as an adult spoken of a sexual relationship with the applicant prior to being afflicted with psychiatric difficulties.

Ground 2:  Admission of CK’s statement

1. Under cover of ground 2, the applicant’s counsel contended that EW’s statement to CK – that the applicant said ‘as long as we don’t actually have sex, we can do anything else ‘cause that’s what people do in relationships’ – was inadmissible hearsay.  Moreover, counsel contended that the evidence was introduced in circumstances in which the prosecutor wrongly had not sought or obtained a ruling permitting it to be led.

2. In our opinion, these submissions do not withstand scrutiny.

3. Pursuant to s 67 of the Act, the prosecution had served a pre-trial notice (‘the hearsay notice’), dated 4 December 2019, that the prosecution ‘intends to adduce hearsay evidence, that is, evidence of a previous representation by a person to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation’. The hearsay notice included the following:

   2.   The name of the person who made the previous representation & who is unavailable to testify (“the Representor”) is: [EW].

   3.   The factual basis on which the Prosecution contends that the Representor is unavailable to testify is as follows: the Representor is deceased.

   4. The provision(s) of the Act setting out the relevant exception(s) to the rule against hearsay on which the Prosecution intend(s) to rely is/are (NB: delete provision if inapplicable):

   S65(2)(b)

   S65(2)(c)

   S65(3)

   5.   As indicated in Table A, particulars of the date, time & place at and the circumstances in which the previous representation was made & the name(s) of each person who saw, heard or perceived the previous representation being made are: …

4. ‘Row 3’ (so-described in oral submissions) of Table A of the hearsay notice was as follows:

REPRESENTATION	DATE	TIME	PLACE	CIRCUMSTANCES	NAME OF WITNESS(ES)
…	…	…	…	…	…
3) The Representor told [CK] the accused ‘can do anything to me but have sexual intercourse.’	Approx. 1993/1994	-	[Named schools]	Representations made in conversations with a close friend at school, on a number of occasions when the Representor was upset after boys at school had teased her about her relationship with the accused.	[CK]
…	…	…	…	…	…

1. As the hearsay notice made clear, the provisions of the Act relied upon to admit the ‘Row 3’ representation – that EW told CK that the applicant ‘can do anything to me but have sexual intercourse’ – were ss 65(2)(b), 65(2)(c) and 65(3).

2. Hearsay evidence is regulated by Part 3.2 of the Act. The hearsay rule is contained in Division 1 (ss 59 to 61). Section 59(1) provides that evidence of a previous representation made by a person ‘is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation’.

3. Division 2 of Part 3.2 (ss 62 to 68) is concerned with ‘first-hand’ hearsay. Section 62(1) provides that a reference in Division 2 to a previous representation ‘is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact’. By virtue of s 62(2), a person has personal knowledge of the asserted fact ‘if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact’.

4. So far as relevant, s 65 provides:

   65  Exception—criminal proceedings if maker not available

   (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

   (2)  The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—

   …

   (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

   (c)was made in circumstances that make it highly probable that the representation is reliable; …

   …

5. As we have indicated, the hearsay notice was served in December 2019. Thereafter, the applicant’s trial counsel took a number of pre-trial objections before the trial judge to various pieces of hearsay evidence, including an objection to the Row 3 representation that is the subject of the present ground. Those objections were contained within written submissions dated 12 March 2020 – entitled Defence Submissions on Crown Application to Lead Hearsay Evidence Under s 65 – to which counsel for the applicant later spoke. The objections included: ‘Complainant’s representation to [CK] that accused “can do anything to me but have sexual intercourse”: danger that this is second-hand hearsay, given no evidence of complainant being present during conversation …’.[26]

   [26]Emphasis in original.

6. On 13 March 2020, in the course of discussion on the admissibility of the various representations contained in the hearsay notice, the trial judge – mistakenly, it would seem – suggested to the prosecutor that ‘Row 3’ was ‘inaccurate’, in the sense that ‘the representation didn’t occur in 93/94’.  On one view – it is far from clear – the prosecutor appeared to agree with the proposition that the representation was made in a conversation ‘in 2011 or thereabouts’, notwithstanding that CK had said that the relevant representation had been made to her by EW in High School.  In any event, at no stage did the judge make a formal ruling on the defence objection concerning the Row 3 representation.

7. Subsequently, the applicant’s counsel sought to challenge the admissibility of various aspects of the hearsay evidence in the prosecution case on an interlocutory appeal.  On 16 April 2021, however, this Court refused leave to appeal.[27]

   [27]See [4] above.

8. Following this Court’s decision, there was further pre-trial discussion before the judge on 22 April 2021 concerning the representations in the hearsay notice (and other matters), during which the judge and counsel endeavoured to remind themselves of the evidentiary issues that had been resolved more than a year earlier.  That discussion included the following passage relevant to the Row 3 representation:[28]

   HIS HONOUR:  I’ve got a tick next to [CK] and a tick next to [another witness] save her evidence about opinions about what the mother was motivated by, you weren’t leading that.  That’s what I’ve got a note there.

   [PROSECUTOR]:  Yes.

   HIS HONOUR:  Then I’ve got a cross through – then we went back to [CK] again, and I’m not sure why.

   [PROSECUTOR]:  I think the - - -    

   HIS HONOUR:  Yes, that number 3, I’ve got a note that you'd indicated you wouldn’t bother with that.

   [PROSECUTOR]:  Well, that’s one I want to reflect on, Your Honour.

   [28]Emphasis added to this and following passages.

9. During further discussion of the hearsay notice in the morning of the next day, 23 April 2021, the judge observed that ‘the broad position now, I think, is because of the nature of the defence, the history of complaints will get in’.  That prompted defence counsel to say that she ‘accept[ed] that complaints ought to get in’.  The matter was then stood down until the afternoon so counsel could endeavour to resolve outstanding evidentiary issues.  When the matter resumed, there was the following discussion, during which it was made clear that any further unresolved evidentiary issues would be dealt with ‘in the running’:

   HIS HONOUR:  All right, so there’s nothing else to argue about in this case?  Pre-trial arguments, there’s no more evidence that we need to argue about?

   [DEFENCE COUNSEL]:  No, Your Honour, but there is the representations issue.  The s 66 that I flagged earlier in the morning.

   HIS HONOUR:  Yes, I know that. 

   [DEFENCE COUNSEL]:  But I think my learned friend was going to take some [time] to think about which of those matters he was going to press. 

   HIS HONOUR:  Well, he’s not going to lead bit of the statements that are plainly inadmissible and if he starts to, you can object and I’ll rule on it. 

   [PROSECUTOR]:  We can deal with that in running I would’ve thought.

   [DEFENCE COUNSEL]:  In the running of it, yes.

   HIS HONOUR:  Yes, that’s what I thought.

   [DEFENCE COUNSEL]:  I agree with that, Your Honour.

10. We consider it to be plain from the passage immediately above that, in circumstances in which the prosecutor was still considering his position on the admissibility of certain evidence, defence counsel acquiesced in a process whereby she would take objections to – and the judge would rule on – inadmissible evidence ‘in the running’.

11. It is against that backdrop that the prosecutor introduced through CK the hearsay evidence now impugned by this ground.[29]  It is also against that backdrop that the applicant’s counsel did not object to its introduction. 

    [29]See [39] above.

12. In these circumstances, we consider that the contention that the evidence was impermissibly introduced by the prosecutor without seeking or obtaining a ruling on its admissibility cannot be accepted.  In our view, counsel must be taken to have waived any objection to the evidence.[30]  So much disposes of this ground.  As Charles JA observed in Clark, where defence counsel makes a deliberate choice not to object to hearsay evidence adduced by the prosecution, there can be little ground for a later objection on appeal that the evidence was inadmissible.[31] 

    [30]See R v Radford (1993) 66 A Crim R 210, 232–3 (Phillips CJ and Eames J); Clark v The Queen (2005) 13 VR 75, 80 [19]–[20] (Maxwell P), 82 [54] (Charles JA), 83 [61] (Nettle JA) (Clark); HA v The Queen (2013) 38 VR 154, 157 [15] (Nettle AP).

    [31]Clark, 82 [54].

13. As indicated above,[32] counsel for the applicant also submitted that the impugned evidence was not ‘first-hand’ hearsay as defined by s 62, since it was not possible to determine that the representation was based on something that EW had seen, heard or otherwise perceived. It therefore could not have been admitted under s 65.[33] 

    [32]At [52]. See also [60].

    [33]Counsel also submitted that the evidence was not admissible under s 108.

14. Counsel for the respondent submitted that, contrary to the applicant’s submission, the impugned evidence was first-hand hearsay.  The asserted fact being conveyed by the representation was that EW and the applicant were in a relationship that included sexual activity short of actual ‘sexual intercourse’.  Plainly, counsel submitted, the fact that she was in a sexual relationship with the applicant was something of which EW had personal knowledge, given that she was a party to, and participant in, that sexual relationship.

1. We agree with the submissions of the respondent’s counsel.  On its face, the representation was made shortly after the asserted fact occurred, in circumstances that make it highly probable that it is reliable and unlikely that it is a fabrication.

2. This also is sufficient to dispose of ground 2.  Before we leave this ground, however, there is one further matter that merits comment. 

3. In the written case, in an endeavour to explain trial counsel’s failure to object, counsel for the applicant submitted that ‘Defence counsel had been at the Bar since only 2018 and her instructor was frequently not present in court’.  As to that submission, we agree with the following observations in the respondent’s written case:

   Whatever the intended purpose of the applicant noting counsel’s years call in his written case, it could not be fairly said that counsel did anything other than a thorough and professional job acting in the applicant’s interests.  It certainly could not be said that the manner in which the trial was conducted by counsel was productive of a substantial miscarriage of justice.  To the contrary counsel represented the applicant conscientiously, the forensic choices made were sound, rational and readily understood as being designed to benefit the interests of the applicant.

Ground 3:  The expert evidence

1. Ground 3 contends that the judge ‘erred in his application of the expert evidence’.  Although it is unaccompanied by particulars, the ground is concerned with the evidence of two witnesses called in the defence case – Professor Donald Thomson and Dr Daniel (‘Danny’) Sullivan – who gave evidence of an expert nature bearing on the reliability of EW’s memory.

2. Professor Thomson, an acknowledged expert on memory, is Emeritus Professor of Psychology at Deakin University.  He gave evidence that memory is conceptualised as an input or perceptual stage, a storage stage and a retrieval stage.  A breakdown in any one of those stages results in a corruption of memory.  Memory is ‘never just a picture or a storage, a videotape of an event’.  Memory is ‘reconstructed on the basis of a person’s understanding of what events might have been at the time, so that the person’s memory of some of the events will be reconstructed in the light of their present knowledge, belief, and expectations’.  When a memory is reconstructed, ‘the storage of information is in a sense overwritten by a person’s knowledge of the world at that time they are reconstructing or retrieving the information’.  So far as accuracy is concerned, ‘the details and events and even the gist of it may well be changed and become quite unreliable’.

3. Significantly, Professor Thomson said that the fact that EW accessed documents relating to the applicant’s unrelated sexual offending during her stay at Epworth Hospital in April 2018 had the potential

   to corrupt, contaminate what her memory is to the extent that she may potentially have identified with that person.  Now, I make that comment in the light of research that has shown that when people read about, or hear information at the point, to information they’ve previously had, that may well, and that has been shown to change what they recall of events. 

4. Also significantly, Professor Thomson gave the following evidence:[34]

   [DEFENCE COUNSEL]: What is your opinion as to the potential for the complainant’s memories of the alleged abuse to be unreliable given all of the information that you’ve received about this matter?---Well, as I’ve summarised, it’s all the details happening later, after the alleged events.  There is a high potential, a high probability, that her memory of the events could have changed as a result of that intervening information.  I cannot say anything more than that.  Based on the research that I have included in my previous report, that potential exists.

   …

   How relevant is someone’s confident demeanour in assessing the accuracy of what they say in terms of their memories?---I can tell you that the research clearly and unequivocally states there is no relationship at all between a person’s confidence demeanour and their accuracy.

   [34]Emphasis added.

5. Dr Sullivan, a well-respected consultant forensic psychiatrist, is the Executive Director of Clinical Services at the Victorian Institute of Forensic Mental Health (‘Forensicare’), had been provided with a large volume of clinical records relating to EW in the period between 2013 and 2019, including documents generated during her admission to Epworth Hospital in April 2018.  EW had attracted a diagnosis of borderline personality disorder associated with post-traumatic stress disorder (‘PTSD’), potentially ‘triggered by the sexual abuse that she believed she suffered at the hands of the [applicant]’, although none of the clinicians had actually linked EW’s PTSD ‘to the fact that she says she suffered child sexual abuse’.  Dr Sullivan gave evidence that two weeks into her admission, on 16 April 2018, a clinician had noted that EW had memories ‘surfacing’ of events that had occurred 25 years previously, which suggests

   that her recollection was changing, that is, she was finding new material or that she was recollecting details that she had not previously.  I would always take ‘surfacing’ as suggesting that something that wasn’t previously – that a person previously wasn’t consciously conscious of or recollecting, they were now more conscious of or had increased recollection of.

6. According to the clinical notes, Dr Sullivan said, EW had been experiencing vivid dreams and nightmares, raising the possibility of the dreams being incorporated into her memory.  Dr Sullivan gave the following relevant evidence:

   HIS HONOUR:  There’s just one matter I wanted to ask …  In terms of the concept of dreams becoming incorporated into accounts, and accordingly affecting the reliability, is it of any significance to look at whether – in terms of the account itself, surrounding events actually took place or not, or they can be verified by other evidence?  Is that of any significance? … For instance, I mean the gist of this suggestion is that the dream [or] the nightmare gets incorporated into an account of sexual assault? … Then one looks at the account and the account might have certain features such as location or an event, and then as the fact finder you’ve got to look at and try and determine the reliability of it, if there’s other evidence that suggests for instance the location or the event actually took place, is that of any relevance to assessing this kind of idea that the dream may have been incorporated into the idea?---Um, Your Honour, it’s more of relevance when there’s dissonance between those two situations, that is when, um, the person recounts a recollection which may have been influenced by dreams or nightmares, um, and that that is inconsistent with information about the surrounding events, um, so there I suppose you can say there is some evidence that the dream may have influenced the person’s, um, memory and made it less reliable, um, but in other situations, um, it can’t be determined because it may well be that a person’s recollection has also taken into account the collateral information about the circumstances surrounding the event which has instead influenced the reliability of their memory, so from the point of view of a clinician that’s very difficult to determine.

7. Dr Sullivan also gave evidence that it is not clear that there necessarily is ‘any correlation between events happening in everyday life and dreams’.  Ordinarily, Dr Sullivan said, in a case such as EW’s, he would be looking for indications of mental disorders which might affect the quality or accuracy of recollections and would ‘be asking her about the continuity of them’; that is, ‘whether she had always had those recollections or whether they had surfaced or come into her mind at a later stage’, and he ‘might be asking about triggers to her recollections’.

8. In his reasons, when dealing with Professor Thomson’s evidence, the trial judge made the following observations: [35]

   In my opinion, the evidence of Professor Thomson obviously informs the unreliability warning I must give myself.  Indeed, a good deal of his evidence echoes the honest but erroneous memory direction.  I am not of the view that his evidence casts any real doubt on the reliability of the complainant’s evidence of an overall sexual relationship with the accused.  Rather, much of his evidence concerning her reliability and reconstructed memories generally goes to the reliability of her memories of details, dates and locations of specific instances said to have occurred within a sexual relationship. …

   In assessing the evidence in this case, I have taken into account Professor Thomson’s evidence concerning potential unreliability of reconstructed memories including in relation to dates, locations, the potential of transference using ‘landmarks’, the potential of contamination, the difficulty in recalling specific incidents out of a large number of allegations and the difficulty of recalling individual incidents out of high frequency events.  Of course, in cross-examination he conceded that reconstructed memories can be accurate and reliable and that dramatic events are likely to stand out in a person’s mind.

   In my view, his evidence establishes the potential of unreliability that I must take into account in assessing the evidence of the individual incidents giving rise to the charged acts, rather than an insurmountable obstacle to acceptance of the complainant’s evidence beyond reasonable doubt on any of the charged acts.

   [35]Reasons [643]–[645].

9. And with respect to the use to be made of Dr Sullivan’s evidence, the judge said (among other things):[36]

   Firstly, I am of the view that it is not permissible in this case to reason that because the complainant had post-traumatic stress disorder (‘PTSD’) and/or a borderline personality disorder (‘BPD’) I can infer she had been subjected to sexual abuse.  Dr Sullivan accepted there are several other events in her life that could have resulted or contributed to the onset of these conditions.  I regard this evidence as neutral as to whether she was subjected to sexual abuse given the alternative explanations.

   As with Professor Thomson’s evidence, Dr Sullivan’s evidence informs the unreliability warning in the ways I have earlier set out.  In my opinion as with Professor Thomson’s evidence, Dr Sullivan’s focus was on the potential unreliability of aspects of the complainant’s account rather than to question the overall assertion of a sexual relationship.

   Dr Sullivan certainly raised the possibility of the content of dreams and flashbacks being incorporated into the complainant’s account which could affect the accuracy of the account.  ...  Dr Sullivan said that he would ask the complainant further questions to ascertain whether content from dreams had affected the complainant’s recall.  That such questions cannot be asked in cross examination is part of the forensic disadvantage warning that I have given myself in this judgement.

   In my opinion, Dr Sullivan’s evidence establishes that the incorporation of dream or flashback content into the complainant’s account is a theoretical possibility, but there is no evidentiary foundation in the notes that elevates this defence hypothesis higher than that. ... His evidence, in my opinion, must be taken into account in considering the complainant’s reliability and the individual incidents.  However, as with Professor Thomson’s evidence, it does not create an insurmountable obstacle to acceptance of the prosecution case beyond reasonable doubt as submitted by the defence.

   [36]Reasons [647]–[650].

10. Under cover of ground 3, counsel for the applicant submitted that the trial judge had wrongly limited the ‘import’ of the unchallenged expert evidence.  

11. Thus, in relation to Dr Sullivan’s evidence, counsel for the applicant submitted that the judge found that Dr Sullivan’s evidence did not create an ‘insurmountable obstacle’ to acceptance of the prosecution case beyond reasonable doubt because Dr Sullivan could only say that it was ‘theoretically possible’ that EW’s account was in part sourced from dreams or flashbacks.  Counsel submitted that, although it was correct to say that Dr Sullivan used the language of ‘possibility’, the judge’s reasoning did not grapple with the combined effect of the ‘unavailable witness’ direction that the judge gave himself with respect to EW, and Dr Sullivan’s unchallenged evidence that the reason he could not be more definitive was because EW was unavailable.  Combined, counsel submitted, there remained an unexcluded reasonable possibility that one or more of the particulars of any of the charges was first ‘recalled’ during one of EW’s psychiatric admissions or sourced from a dream or nightmare and thus unable to be proved to the criminal standard.[37]

    [37]Counsel cited R v E (1997) 96 A Crim R 489, 500–01; R v Bartlett [1996] 2 VR 687, 694–6, 698; and TS v The Queen [2014] NSWCCA 174, [34]–[43], [71]–[74].

12. So far as Professor Thomson’s evidence was concerned, counsel for the applicant submitted that, whilst the judge found that his evidence established ‘the potential of unreliability’, it also did not constitute an ‘insurmountable obstacle’.  Counsel submitted that the judge failed to give effect to Professor Thomson’s unchallenged evidence that the fact that EW could correctly recall certain events (for example, her fifteenth birthday) did not establish that her account that sexual offending occurred around the time of those events was reliable.  Rather, there may have been ‘transference’ or ‘reconstruction’ onto a ‘landmark’.  Professor Thomson’s unchallenged evidence was that, in all the circumstances of this case, there was a high probability that EW’s ‘memory’ could have changed.  Counsel submitted that the judge’s reasons for convicting on specific incidents highlights the error.[38]

    [38]Counsel referred to Reasons [687] (Incident 2); [692] (Incident 4); [699] (Incident 5); and [708]–[710] (Incident 9).

13. There was no rational reason consistent with the unchallenged evidence and the directions that the judge gave himself, counsel submitted, that permitted the judge to exclude the reasonable possibility that each of EW’s allegations were based on memories that first ‘surfaced’ as a dream or nightmare, or resulted from the ‘transference’ or ‘reconstruction’ of a memory of sexual activity.  Additionally, counsel submitted that – unlike Incidents 2, 5 and 9 – Incident 4 was not tied to any objectively proved ‘landmark’.  Rather, EW placed it prior to her sixteenth birthday because she purported to recall that it happened ‘very early’ in 1994 ‘not long after’ the applicant started shaving her legs on a day she went to a netball tournament.  There was no evidence adduced, however, to confirm that the netball tournament occurred and, in any event, the leg-shaving and Incident 4 were, the complainant said, ‘separate’ and ‘not related’.  In these circumstances, counsel submitted, Professor Thomson’s unchallenged evidence about the unreliability of attributing a particular time frame to an event had particular application.  The judge’s reasons failed to give effect to this.

14. The respondent’s counsel submitted that the judge’s treatment of the evidence of Professor Thomson and Dr Sullivan was without error.  It was well open to the judge to conclude that the expert evidence did not itself provide an ‘insurmountable obstacle’ to proof beyond reasonable doubt on any of the charges on the indictment.  Rather, the evidence had application to the potential unreliable evidence direction and the unavailable witness direction, and, more broadly, had application to the consideration of the evidence applicable to each individual charge and whether a particular charge had been proven.  Counsel for the respondent submitted that the judge’s analysis of the evidence, and his reasons for verdicts, demonstrate that there has been no error in the treatment of the expert evidence.  The judge’s conclusions of fact and pathways of reasoning reflect sound application of the relevant directions of law to the evidence in the case.

15. We are not persuaded that the judge erred in his approach to the evidence of Professor Thomson and Dr Sullivan. 

16. In our view, the judge was correct to observe in the case of both experts that their evidence informed the unreliability warning that he was required to give himself.  Properly understood, however, their evidence did not dictate an outright rejection of the whole of EW’s evidence on the basis of that potential unreliability.

17. We consider that the judge was also correct to observe that the evidence of the experts did not cast any real doubt on EW’s evidence that she and the applicant were in a sexual relationship.  Instead, particularly in the case of Professor Thomson, the evidence was relevant to the reliability of EW’s evidence as to the specific details, dates and locations of particular instances of sexual activity said to have occurred within that broader sexual relationship.  As the judge held, the expert evidence was not an insurmountable obstacle to the acceptance of EW’s evidence on the criminal standard.  Instead, as the judge recognised, he needed to take the potential unreliability of EW’s evidence into account when assessing EW’s evidence of the individual incidents giving rise to the charged acts.

18. As is discussed below,[39] given the potential unreliability of EW’s evidence, in relation to those charges upon which he convicted, the judge looked for supporting evidence.  Generally, on those charges upon which he found the applicant not guilty, there was the lack of evidence supporting the reliability of EW’s account.  That being so, the contention that the judge failed to take proper account of the expert evidence cannot be accepted.

    [39]See [127] et seq.

19. Ground 3 must fail.

Ground 4:  The judge’s approach to EW’s prior inconsistent statements

1. Counsel for the applicant submitted that EW had made a number of statements prior to her first statement to police in May 2018, which were inconsistent with that latter account, including that sexual acts with the applicant did not occur until she was close to, or over, the age of 16.

2. The first of the alleged prior inconsistent statements was to Detective Matthew Phelan.  As we have mentioned,[40] in 2011 EW heard via media and social media that the applicant had been charged with child sex offences.  She was ‘mortified’ and ‘humiliated’, and contacted the Office of Public Prosecutions who put her in touch with Detective Phelan.  After conversing with him, EW decided that ‘the time was not right’ to report what had happened to her, because she was pregnant and had a young family.

   [40]At [34] above.

3. Although Detective Phelan had made notes of his 2011 conversation with EW, his notes were not produced by the informant or prosecution until after the applicant’s committal proceedings.  Indeed, under cross-examination at committal, the informant, Detective Coutts, had sworn that there was ‘no written record of any interaction’ between EW and Detective Phelan.

4. More than two years after the committal proceedings concluded, however, Detective Phelan’s notes were produced to the defence by way of a Notice of Additional Evidence dated 7 April 2021.  By that stage, Detective Phelan had made a statement, dated 23 March 2021, in which he said that he had found diary entries that he had made on 22 June 2011.  Apparently he had met EW at 11.00 am that day, and had made notes of this meeting both in his diary and day-book (‘the Phelan notes’). 

5. Significantly, the Phelan notes record that EW had told him that she left home at age 15 or 16, and went to live with the applicant.  She resided with the applicant ‘and/or his parents until 2001’, and continued to live with his parents after their ‘break-up’.  According to the notes, EW said she lived with the applicant for two years.  Also significantly, she said her first ‘sexual encounter with him was one month before her 16^th birthday’.  No ‘penis-vagina intercourse occurred’ on the ‘first time’.  The notes record that EW ‘described an incident [between] the two of penetration of him (sic) fisting her vagina causing her to bleed’.  There were also other ‘sex related’ incidents.  The Phelan notes also record that he explained the various options to EW, including that she could, if she wished, ‘pursue no complaint’.

1. The second prior inconsistent statement relied upon was made to a psychiatrist.  It was revealed in the following way. 

2. During Dr Danny Sullivan’s re-examination by defence counsel, he was taken to a note in the Monash Medical Centre Emergency Department records from 24 February 2014, which included the following:

   [EW] was seduced by a 23-year-old man at the age of 16.  He then used her as a lure to obtain access to young boys whom he then sexually assaulted. Perpetrator now in gaol.

3. Counsel for the applicant submitted that the following could be drawn from what were said to be the two prior inconsistent statements: first, in her initial report to police, EW had said that her first sexual encounter with the applicant had been a month before her sixteenth birthday; and, secondly, EW had told a psychiatrist that she was first seduced by the applicant when aged 16. Counsel argued that these were prior inconsistent statements directly relevant to a central issue in the trial: the reliability of EW’s later assertions – after experiencing psychiatric problems over many years – that sexual activity had commenced when she was aged 14 years. These prior statements were also admissible under s 60 of the Act as evidence of the truth of their contents.

4. In relation to the first purportedly inconsistent statement to Detective Phelan, counsel for the applicant drew attention to the following observations by the trial judge:[41]

   The issue raised by Detective Phelan’s evidence is that the notes of the meeting with complainant in 2011 record that she said the first sexual encounter with [the applicant] took place one-month before her 16th birthday.  Of course, this is inconsistent with her detailed account in the statement and the committal and arguably throws out the sequence and timing of the alleged events, thereby casting doubt on the complainant’s overall reliability, particularly in relation to dates.  Because of the complainant’s unavailability, there is no explanation from her about the contradiction in timing raised in the notes.

   [41]Reasons [665].

5. Counsel for the applicant submitted, however, that the judge failed to accord the prior inconsistent statement recorded in the Phelan notes the significance it rationally deserved.  That failure, counsel submitted, is reflected in the following passage from the judge’s reasons:[42]

   However, Detective Phelan also recorded that in describing the fisting incident, the complainant said the [applicant] was 22 years old when this incident took place.  The [applicant] turned 23 in July 1994, five months before the complainant’s 16th birthday. Her nomination of the [applicant] as 22 when the event occurred is consistent with the timing of the incident in the complainant’s statement.  It is therefore also consistent with her representations in the statement and the committal that sexual activity commenced much earlier than one month before her 16th birthday.  I have had regard to this internal contradiction in assessing the significance of these notes to the complainant’s reliability.  I have also assessed this evidence in light of the evidence I have accepted from [CK] about representations at school and the timing of those representations.  In my view, some aspects of the notes support the complainant’s reliability, and some detract from it.  I have had regard to [the prosecutor’s] argument that the complainant simply made a mistake and was out by a year which I regard as plausible.

   [42]Reasons [666] (emphasis added).

6. The applicant’s counsel submitted that the judge wrongly used the evidence of representations made to CK.  Counsel also argued that the judge was wrong to reason from the fact that the applicant was aged 22 when the ‘fisting’ incident allegedly occurred that EW must have been 15, this interpretation of the Phelan notes not having been raised prior to verdict.  It was an error, counsel submitted, to use the statement to Detective Phelan as a prior consistent statement.  Finally, counsel submitted that the judge made no attempt whatsoever to analyse the significance of the allegedly prior inconsistent statement made to the psychiatrist.

7. Counsel for the respondent submitted that, given the evidence that the judge did accept – which established the chronology of the offending that he found proven beyond reasonable doubt – it was open to the judge to conclude that EW’s prior inconsistent statements relating to the timing of events were not worthy of much weight in the overall context of the case.

8. The respondent’s counsel submitted that, in relation to Incident 2, the offending was fixed in time by reference to the complainant’s fifteenth birthday and her attendance at the wedding.  Further, Incident 4 was an event of obvious significance for EW, given that the applicant inserted his entire fist into her vagina.  Incident 5 relates to a particular date, 15 January 1994, that date having been confirmed by the occupant of the house where the applicant was looking after the pets.[43]  Finally, Incident 9 is fixed in time to a trip to Numurkah during Easter 1994, the occurrence of the trip having been corroborated by EW’s mother and sister, and the applicant in his record of interview with police.

   [43]The occupant gave evidence that he was on holiday when he received a call on 15 January 1994 to say that his mother had died.

9. Counsel for the respondent submitted that the judge acknowledged the defence arguments in relation to what were said to be prior inconsistent statements, but ultimately concluded that the previous statements did not provide an insurmountable obstacle to the acceptance of the reliability of EW’s account (albeit they were relevant to the assessment of her reliability, especially as to dates, in relation to individual charges).  This approach, counsel submitted, was reasonably open, and does not demonstrate error.  Furthermore, the contents of the Phelan notes were well-known to the parties.  Quite obviously, the assertion that the applicant was 22 when the ‘fisting’ incident occurred, led inexorably to the conclusion that EW must have been 15.  That defence counsel did not explore the matter in detail in her cross-examination of Detective Phelan reflects sound forensic judgment.

10. The submissions of the respondent’s counsel should be accepted. 

11. With respect to the inconsistencies in EW’s account, the judge directed himself as follows:[44]

    In her closing address [defence counsel] highlighted a variety of inconsistencies she argues are apparent in the complainant’s account.  This included evidence of additional sexual acts not mentioned on the statement such as the incident in the garage, sexual acts at the accused’s factory, multiple occasions of acts of anal penetration in the accused parents’ spa, the incorrect date for the … wedding allegation, the discrepancy in the Phelan notes, and various differences between the committal account and the statement.

    I can use such differences when assessing her credibility and reliability, but I must bear in mind experience shows:

    ·    People may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time.

    ·    Trauma may affect different people differently, including by affecting how they recall events.

    ·    It is common for there to be differences in accounts of a sexual offence.  For example, people may describe a sexual offence differently at different times, to different people or in different contexts.

    ·    Both truthful and untruthful accounts of a sexual offence may contain differences.

    I must decide whether any differences in her account are important in assessing her credibility and reliability.

    Ultimately, the question I must decide is whether the prosecution has proved the charged acts beyond reasonable doubt.

    [44]Reasons [516]–[519].

12. As the passage extracted immediately above demonstrates, the judge was cognisant of the fact that he could use EW’s prior inconsistent statements ‘when assessing her credibility and reliability’. The directions that he gave himself are largely drawn from s 54D of the Jury Directions Act 2015, which, so far as relevant, provides:

    54D Direction on difference in complainant’s account

    (1) If, after hearing submissions from the prosecution and defence counsel (or, if the accused is unrepresented, the accused), the trial judge considers that there is evidence in the trial that suggests a difference in the complainant’s account of the offence charged that is relevant to the complainant’s credibility or reliability, the trial judge must direct the jury in accordance with subsection (2)

    (2) In giving a direction referred to in subsection (1), the trial judge must inform the jury that—

    (a) it is up to the jury to decide whether the offence charged, or any alternative offence, was committed; and

    (b) differences in a complainant’s account may be relevant to the jury’s assessment of the complainant's credibility and reliability; and

    (c) experience shows that—

    (i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; and

    (ii) trauma may affect different people differently, including by affecting how they recall events; and

    (iii) it is common for there to be differences in accounts of a sexual offence; and

    Example

    People may describe a sexual offence differently at different times, to different people or in different contexts.

    (iv) both truthful and untruthful accounts of a sexual offence may contain differences; and

    (d) it is up to the jury to decide—

    (i) whether or not any differences in the complainant’s account are important in assessing the complainant’s credibility and reliability; and

    (ii) whether the jury believes all, some or none of the complainant’s evidence.

13. An examination of the judge’s reasons demonstrates that, not only did he properly direct himself as to the use that could be made of any prior inconsistent statements by EW, but, as we discuss below, he approached the assessment of EW’s reliability in a principled way.  Hence, the judge was not prepared to accept the reliability of EW’s evidence unequivocally.  In relation to those charges upon which he convicted, the judge looked for supporting evidence.  And on those charges upon which he acquitted the applicant, he generally did so because of a lack of evidence supporting the reliability of EW’s account.[45]

    [45]See [137] et seq.

14. In these circumstances, ground 4 cannot be upheld.

Ground 6:  The evidence of EW’s mother concerning Incident 2

1. Ground 6 complains that the trial judge erred in rejecting the unchallenged evidence of EW’s mother regarding Incident 2.  The applicant’s counsel submitted that, based on EW’s mother’s evidence, the judge should have had a reasonable doubt that there was any opportunity for the activity founding charges 3, 4 and 5 to have occurred.

2. In her first statement, EW said that, on her birthday in December 1993, she and her mother went to a shopping centre and purchased footwear to go with a dress she had earlier bought using a voucher.  She and the applicant had been ‘dating about a month when he took me as his date to the wedding [of] a friend of [his] from Scouts’.  The wedding, at a Greek Orthodox Church, was followed by a reception in Red Hill.  She and the applicant went back to his house after the wedding, and the applicant parked his car around the corner so EW’s parents would not know they were back.  They went to the bedroom together, and the applicant penetrated EW’s vagina with his fingers; performed cunnilingus on her; and penetrated her mouth with his penis to the point of ejaculation.  After the sexual activity finished, they went to EW’s house to have a birthday cake with her family.  The applicant stayed talking to her parents until going home at 1.00 am.

3. At trial, it was not disputed that the applicant and EW had attended the wedding together, but it was in issue whether there was an opportunity for offending to have occurred after the wedding and before the party. 

4. Under cross-examination, EW’s mother said that the family had celebrated EW’s birthday in the morning.  Although she ‘can’t be 100 per cent sure’, she did not believe that the applicant was in attendance.  Her recollection was that EW and the applicant went to the wedding – her belief was that ‘it was a night-time wedding’ – after the family birthday celebration.  After having earlier been shown two photographs, Exhibits 4 and 5, which show EW sitting at a table on which there is a birthday cake with lit candles – we interpolate that the photographs appear to have been taken after dark –  EW’s mother’s cross-examination continued as follows:[46]

   [46]Emphasis added.

   [DEFENCE COUNSEL]  You also say, and you were shown some photos there, that you recall celebrating [EW’s] 15th birthday?---Yes.

   And you say you actually recall that event where that photo was taken, do you?---Yes.

   And so, when you say, celebrating, in your statement, you’re referring to sitting down with her?---Yes.

   And that cake being there?---Yes.

   Candles being lit?---And her siblings, yes.

   And her siblings there.  And being blown out by [EW] - - -?---Yes.

   - - - after probably Happy Birthday was sung to her?---Yes.

   You recall that that happened on a day when [the applicant] and she went to a wedding?---Yes.  That’s correct.

   So, [the applicant] was there as well during the celebration?---No.

   He wasn’t there?---I don’t think so.

   So, your clear memory is [the applicant] was not there when the siblings were around?---I don’t think so, no.

   Now, that was the day of that wedding that they went to?---Yes.

   Does it jog your memory if I suggest that this wedding – well, there was a bit of a drive for them to get to this wedding, because it was in somewhere called Red Hill?---I can’t remember, to be honest.

   All right.  Do you recall that the ceremony and the reception was in the evening?  Was it a standard - - -?---I believe it was, yes.

   So, with that celebration that you had for her birthday - - -?---M’hmm.

   - - - is it right to say that you had that celebration before she went to the wedding?---Yes.

   …

   So, what you recall is, you had the celebration for her birthday - - -?---Yes.

   - - - which is depicted there in those two photos?---Yes.

   Your recollection was [the applicant] was not there?---I can’t be 100 per cent sure, but I don’t believe so.

   The rest of her siblings were there?---Yes.

   Obviously you were there, because you remember it?---Yes.

   It was after that that [the applicant] and [EW] went to this wedding?---Yes.

   And your recollection is it was a night-time wedding?---I believe so.

5. In this Court, the applicant’s counsel submitted that EW’s mother’s evidence was not challenged.  Moreover, the informant had taken no steps to investigate the issue, and agreed in cross-examination that ‘there is no evidence to indicate whether it was a daytime or night-time wedding’ other than EW’s statement.  Hence, the judge should have entertained a reasonable doubt that there was any opportunity for the relevant sexual activity to have occurred in the manner alleged.

6. In his reasons, the trial judge noted that the activities making up Incident 2 ‘are alleged to have taken place at the [applicant’s] house after the wedding but before a birthday celebration for the complainant at her family home’.[47]  He continued:[48]

   The defence point to a discrepancy between the evidence of the complainant as to order of events and her mother’s evidence that the celebration was first and that they then went to the wedding.  Whilst I do not regard this timing issue as fundamental to the way prosecution puts its case, it is a matter relevant to an assessment of the complainant’s reliability.

   The complainant gave a very detailed description of the sequence of events on the day of the alleged offence.  She described a shopping trip with her mother to buy sandals in the morning through to her birthday celebration and the [applicant] staying on late at her house.  She remembered she had used a Portman’s voucher to buy the dress she wore to the wedding.  She identified correctly that the wedding was on her birthday and that a celebration for her took place at her house.  She was able to identify the location of reception in Red Hill and that her history teacher was a guest.  She recalled the [applicant] parking in a location where her parents could not see them.  The day itself was a significant one for her, attending a public event with the [applicant] with whom she was in some form of romantic relationship.  It was also her birthday. Her mother’s evidence, in my opinion, was less detailed and she was not as clear about the events of the day.  This is understandable given the exceptional nature of the day to the complainant.  It is true the police did not obtain a statement from any witness to identify the time of the wedding.  Nevertheless, I accept the sequence of events set out by the complainant in her representations about his day.

   I note that Exhibits 4 and 5 are photographs of the complainant at her birthday celebration on that day.  The evidence is that in those photographs she is wearing the dress she wore to the wedding.  Whilst there is no evidence of the circumstances in which the photographs were taken, they do give the appearance of having been taken in the evening, and therefore, certainly do not contradict the complainant’s account that the birthday celebration took place after the wedding.  I do not make a definitive finding about the timing of the photographs; I am simply observing the photographs do not appear to be taken during the day.

   There can be no doubt about the complainant’s age on the day of the alleged events.  It is not in dispute that the wedding took place on her 15th birthday. Given the undisputed fact that the complainant and the [applicant] attended the wedding together, the [applicant] had the opportunity to offend in the way alleged. … I exclude that as a source of contamination for the charged acts.

   In my opinion there is strong support for the complainant’s account of the surrounding circumstances and in my view, she has given a cogent and coherent account of the day’s events.  I have carefully assessed the reliability issues as they relate to this incident, and I am satisfied that her description is grounded in reality rather than resulting from a dream [or] flashback.

   I am satisfied beyond reasonable doubt of the complainant’s reliability in relation to this incident and I am satisfied beyond reasonable doubt that the charged acts took place as alleged and, on the date, alleged.  I am therefore satisfied that all of the elements of the charges relating to this incident have been proven and I find the [applicant] guilty of charges 3, 4 and 5 arising from this incident.

   [47]Reasons [682].

   [48]Reasons [683]–[688] (emphasis added).

7. Counsel for the applicant submitted that the judge erred by accepting EW’s evidence as to the sequence of events. The judge’s approach, counsel submitted, failed to give effect to the significant forensic disadvantage direction the judge had given himself,[49] and to the burden and standard of proof. EW’s mother’s ‘unchallenged’ account, counsel submitted, gave rise to a reasonable possibility that there was no opportunity for the particular offending to have occurred. The judge should have so found.

   [49]See Reasons [496]–[498].

8. In answering this ground, the respondent’s counsel submitted that it was open to the judge to accept EW’s account.  Nothing in the evidence of her mother compelled the judge to experience a reasonable doubt about the offending comprising Incident 2.  

9. We can find no fault with the judge’s analysis.  His reasons for accepting EW’s evidence were thoughtful and persuasive.  We consider that, acting on EW’s ‘cogent and coherent account’, it was well-open to the judge to be satisfied beyond reasonable doubt that the sexual activity founding charges 3, 4 and 5 occurred. 

1. Indeed, making our own independent assessment of the evidence, we consider that there was nothing in EW’s mother’s evidence which must have compelled the judge to have a reasonable doubt about the offending charged as part of Incident 2.  As the judge noted, the mother’s evidence was ‘less detailed’ than EW’s, and ‘she was not as clear about the events of the day’ as her daughter.  The day for EW’s mother – unlike for her daughter – was not of an ‘exceptional nature’.  And although EW’s mother believed that the applicant had not attended the birthday celebration, she was not certain that he had not.  Moreover, although she believed that the wedding was after the birthday celebration, it could not be said that she was definite in that belief.

2. Ground 6 cannot be upheld.

Ground 8:  Are the verdicts unreasonable and incapable of being supported by the evidence?

1. Under cover of ground 8, counsel for the applicant submitted that it was not open to the trial judge, acting rationally, to be satisfied beyond reasonable doubt of the applicant’s guilt on any charge.[50]  Counsel submitted that, for the reasons adumbrated under cover of other grounds, the evidence in the record itself contains discrepancies, displays inadequacies and otherwise lacks probative force in such a way that this Court should conclude there is a significant possibility that an innocent person has been convicted.  This is particularly so, counsel submitted, in circumstances where the issue was reliability not credibility and there was unchallenged expert evidence that there was no relationship between EW’s confidence and her accuracy.  Further, counsel submitted that, in determining this ground, this Court should take into account the evidence that purportedly had been erroneously disregarded or minimised by the judge.[51]

   [50]Counsel cited M v The Queen (1994) 181 CLR 487, 493–5 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); SKA v The Queen (2011) 243 CLR 400, 405–6 [13]–[14], 408–9 [20]–[34] (French CJ, Gummow and Kiefel JJ); Pell v The Queen (2020) 268 CLR 123, 145 [39], 146–7 [43]–[46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’); and Filippou v The Queen (2015) 256 CLR 47, 53–4 [11]–[12] (French CJ, Bell, Keane and Nettle JJ) (‘Filippou’).

   [51]Counsel cited Higgins v The Queen [2020] NSWCCA 149, [189] (‘Higgins’).

2. Counsel for the respondent submitted that the applicant did not contend that the evidence in the trial – in particular, EW’s evidence – could not on its face establish the charges for which the applicant was found guilty.  Rather, so counsel submitted, the applicant’s contention is, in effect, that it was not reasonably open to the trial judge not to accept the applicant’s argument at trial regarding the unreliability of EW’s evidence, so that the judge had to have had a reasonable doubt in relation to all charges.  That contention, counsel submitted, is not persuasive, given that the judge’s reasons demonstrate that he undertook this task with care and with sound application of the law to the facts of the case.  Counsel submitted that the judge’s conclusions and verdicts are rational and the difference in verdicts is explained by the differences in quality or quantity of the evidence in relation to individual charges.  That a different outcome might theoretically have been possible is not dispositive of the question posed by this ground, the question being whether on the evidence the trial judge must have had a reasonable doubt.  There is nothing in the evidence that compels that conclusion.

3. The starting point of any analysis must be s 420E(2) of the CPA, which provides that the decision made by a trial judge in a trial by judge alone ‘has, for all purposes, the same effect as a verdict of a jury’.

4. Ground 8 invokes s 276(1)(a) of the CPA, which provides that ‘the Court of Appeal must allow [an] appeal against conviction if the appellant satisfies the court that … the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.

5. As was observed in Henshaw,[52] the question this Court must ask itself in light of M is whether we think that it was open to the judge – standing in the shoes of a jury – to be satisfied beyond reasonable doubt upon the whole of the evidence that the applicant was guilty.[53]  The majority in M said:[54]

   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.

   [52]Henshaw (a pseudonym) v The Queen [2021] VSCA 356, [111] (Priest and Kyrou JJA) (‘Henshaw’).

   [53]M, 493 (Mason CJ, Deane, Dawson and Toohey JJ). See also Filippou, 53–4 [12] (French CJ, Bell, Keane and Nettle JJ).

   [54]M, 494−5 (citations omitted).

6. Relatively recently, the approach laid down in M was once more endorsed by the High Court in Pell.  The Court said:[55]

   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,[56] 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.

   [55]Pell, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citation as in original).

   [56][CPA], s 276(1)(a).

7. In this case, the judge observed early in his very detailed reasons that ‘I must base my verdict only on evidence I find to be credible and reliable’,[57] and that the ‘reliability of the complainant was the central issue in the trial’.[58]  In giving himself an ‘unreliability warning’ with respect to EW, the judge said:[59]

   The honest recollections of a witness about events that she believed to have occurred many years before may be unreliable.  The passage of time may affect a witness’s memory.  While in some cases people simply forget things, in other cases their memory may become distorted.  That is, they may come to remember things that did not really happen.  Human recollection is frequently erroneous and liable to distortion in this way.  The likelihood of this error increases with delay.

   The defence rely [on] the evidence of Professor Thomson relating to the unreliability of memory of past events and the dangers of memory reconstruction.  Further the defence rely on Professor Thomson’s evidence concerning the difficulty of accurately recounting specific incidents where there were many individual events of a similar nature and the difficulties associated with an accurate recall of dates.

   The defence also rely on the evidence of Professor Thomson that when the complainant discovered the [applicant’s] offending against young males, she may have recast herself as a victim as a way of distancing herself from the [applicant].

   The defence rely on the possibility of unconscious contamination of the complainant’s account through reading extraneous material and through dreams and flashbacks in the context of her PTSD and borderline personality disorder.  The defence rely on the evidence of Dr Danny Sullivan and his examination of the psychiatric notes in regard to this aspect of potential unreliability.

   I must take this potential unreliability into account in determining whether I accept the complainant’s evidence at all, whole or in part, and in deciding what weight to give to that evidence.

   I must carefully consider not only whether the complainant’s evidence is honest, in the sense that she believed it to be true, but also whether it is in fact true.  I must consider the possibility that she honestly believes what she is saying but is mistaken due to the distortion of her memory by one of the various processes relied upon by the defence.

   [57]Reasons [17].

   [58]Reasons [26].

   [59]Reasons [490]–[495] (emphasis added).

8. Further, when turning to his findings with respect to the charges, the judge said:[60]

   I turn now to my analysis and findings in respect of the charged acts.  I remind myself that in assessing the individual incidents and charges I must take into account all of the matters I have set out in the specific evidentiary directions.  In particular, I take into account the disadvantages occasioned by the unavailability of the complainant, the matters contained in the unreliable witness direction and the forensic disadvantage warning.

   [60]Reasons [676].

9. An examination of the trial judge’s very comprehensive reasons reveals that he then went on to scrutinise the reliability of EW’s evidence as it applied to each charge.  That examination also reveals that the judge did not universally and uncritically accept EW’s evidence as being reliable.  Indeed, properly and in accordance with the criminal standard, on those charges upon which the judge considered EW’s evidence beyond reasonable doubt to be reliable, the judge convicted the applicant;[61] and on those charges upon which the judge had a reasonable doubt about the reliability of her evidence, the judge acquitted him.[62]

   [61]See Reasons [688] (charges 3, 4 and 5); [694] (charge 10); [699] (charges 11, 12 and 13); [707] (charges 18 and 19); and [710] (charge 20).

   [62]See Reasons [681] (charge 2); [689] (charges 6 and 7); [702] (charge 14); [705] (charge 17); [713] (charge 22); [716] (charge 23); [720] (charges 27, 28, 29 and 30); and [722]–[723] (charges 34, 35 and 36).

10. Notwithstanding the judge’s assessment of EW’s reliability on those charges upon which he returned verdicts of guilty, however, it remains this Court’s task to examine the whole of the evidence to see whether it reveals inconsistencies, discrepancies or other inadequacies, such that the Court is satisfied that the judge, acting rationally, should have entertained a reasonable doubt about the applicant’s guilt.  The fact that the judge, on the charges upon which he convicted, assessed EW’s evidence to be reliable, however, is not the end of the inquiry.  As was said in Henshaw, we are concerned in the case of each charge with the ‘verdict’ – not the judge’s reasons for it – and whether, in light of all the evidence, it is unreasonable or cannot be supported having regard to the evidence.[63]  Our examination of the evidence must not be undertaken in a piecemeal fashion, and our ultimate conclusion must turn on the combined effect of the evidence.  Thus in Pell – even though it was assumed that the jury assessed the complainant’s evidence to be credible and reliable – the High Court nevertheless concluded that ‘the compounding improbabilities caused by [other] unchallenged evidence … nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt’.[64]

    [63]Henshaw, [113] (Priest and Kyrou JJA).

    [64]Pell, 164 [119] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). See also 166 [127].

11. In Filippou, the High Court spelled out the approach to be adopted by an appellate court when it is contended that a verdict returned in a judge alone trial is unreasonable or cannot be supported by the evidence. In that case, a judge in the Supreme Court of New South Wales sitting without a jury had convicted the appellant of murder. Relevantly, s 133 of the Criminal Procedure Act 1986 (NSW) – which is expressed in similar terms to s 420E of the CPA – provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt of the accused and that such a finding has the same effect as a verdict of a jury. Further, s 6(1) of the Criminal Appeal Act 1912 (NSW) – which bears a degree of similarity to s 276(1)(a) of the CPA – provides in effect that the Court of Criminal Appeal shall allow an appeal against conviction if the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.

12. The High Court dismissed an appeal from the Court of Criminal Appeal of New South Wales.[65]  French CJ, Bell, Keane and Nettle JJ discussed the application of the key statutory provisions:[66]

    Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act that the effect of the latter provision is to equate a judge’s finding of guilt to a jury’s finding of guilt ‘for all purposes’. It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt.

    Authority makes plain that a jury’s finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 33(1) of the Criminal Procedure Act that, in the case of an appeal against a judge’s finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice.  It is, however, to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. …

    [65]See Filippou v The Queen [2013] NSWCCA 92.

    [66]Filippou, 53–4 [11]–[12] (citations omitted; emphasis added).

13. As we have mentioned, counsel for the applicant relied on Higgins, a case in which the applicant had been convicted of several sexual offences following a trial by judge alone.  The Court of Criminal Appeal of New South Wales set aside the convictions on the basis that the verdicts were unreasonable, or could not be supported having regard to the evidence.  Payne JA said:[67]

    The question posed by this ground is one of fact which the Court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which the trial judge might have convicted, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand.  I have concluded that this is such a case.  This is one of those rare cases where the evidence in the record itself contains discrepancies, displays inadequacies, is tainted and otherwise lacks probative force in such a way as to lead me to conclude that, even making allowance for the advantages enjoyed by the trial judge, there is a significant possibility that an innocent person has been convicted.  It follows that the applicant is entitled to be acquitted of all charges.

    [67]Higgins, [175].

14. Counsel for the applicant drew specific attention to the reasons of Rothman J, who observed that, when considering whether the verdict was unreasonable, or could not be supported having regard to the evidence, ‘one must exclude the evidence wrongly admitted and include the evidence rejected by [the judge], either as inadmissible or of no or little weight’.[68]

    [68]Ibid [189].

15. Having made our own assessment of the evidence, we consider that it was open to the judge to be satisfied beyond reasonable doubt on the whole of the evidence that the applicant was guilty.  The applicant has failed to persuade us that the verdicts of guilty returned by the judge were unreasonable or incapable of being supported having regard to the evidence.  Indeed, we regard the judge’s path of reasoning towards guilt on the charges upon which he convicted to be sound.

16. As we have said – and as appears from the judge’s reasons – he was not prepared to accept the reliability of EW’s evidence universally and uncritically.  It is also clear that, in relation to those charges upon which he convicted, the judge looked for supporting evidence.  Indeed, a recurring theme in the judge’s reasoning on those charges upon which he found the applicant not guilty was the lack of evidence supporting the reliability of EW’s account.[69]  Plainly, such an approach is unimpeachable.

    [69]See, eg, Reasons [689], [702], [704], [713], [715] and [720].

17. Thus, in finding the applicant guilty in relation to the Incident 2 charges (charges 3, 4 and 5) – relating to EW’s fifteenth birthday when she and the applicant attended a wedding together – the judge considered that there was ‘strong support for the complainant’s account’.[70]  Clearly, he was correct to so find.

    [70]Reasons [687], set out at [116] above.

18. With respect to Incident 4 (charge 4), which was the ‘fisting’ incident, the judge accepted that ‘this incident stands out in the complainant’s mind as being the most traumatic incident that took place’, and observed that there ‘is not another incident like it in the complainant’s account’.[71]  Given what the judge regarded ‘as the indelible imprint on the complainant’s memory of this incident’, he was ‘satisfied of her reliability in relation to it’.[72]  We are unable to see that the path of reasoning that the judge followed in reaching a verdict on charge 4 was flawed.  The verdict the judge returned was one that clearly was open on the evidence.

    [71]Reasons [691].

    [72]Reasons [694].

19. As to Incident 5 (charges 11, 12 and 13), which involved events when the applicant was house-sitting, the judge observed that the ‘date in respect of this incident is well established and this was an early incident in the relationship which, in my opinion, as a matter of common sense, is more likely to stand out in the complainant’s mind’.  The judge concluded:[73]

    I have had regard to all the issues raised relating to reliability including the possibility of transference and contamination or incorporation from a dream or flashback.  Having regard to the clarity of the complainant’s account and the strong support for the surrounding circumstances in the evidence of [the occupant of the house], I am satisfied this incident is grounded in reality and I am satisfied beyond reasonable doubt about the reliability of the complainant’s account of the charged acts and that they took place as alleged on the date alleged.

    [73]Reasons [699].

20. Once more we are unable to detect any flaw in the judge’s reasoning that would lead us to conclude that the verdicts that the judge reached on charges 11, 12 and 13 were not open to him.

1. Finally, in finding the applicant guilty in relation to Incident 9 (charge 20) – the Numurkah trip – the judge found support for EW’s account in other evidence.  He said:[74]

   The date of this trip is well established in the evidence as Easter 1994.  This comes from the complainant, and from her mother, and her sister … Accordingly, there is no doubt concerning the complainant’s age at the time of this incident.  The surrounding circumstances are also well supported by the witnesses and by the [applicant] in his record of interview.  The night of the incident was memorable because of the argument between the accused and the complainant’s parents.  I accept [the prosecutor’s] argument that there is a confluence of memories around this incident.  I do not accept that the offence is unlikely to have taken place because the argument took place in the lounge room, and this is where the offence is alleged to have taken place.  I did not understand [EW’s mother’s] evidence about the argument going on for most of the night to mean the argument literally went on until the morning.  The evidence is the [applicant] was present overnight and, in my opinion, the opportunity for him to have committed the offence is clear.

   Taking into account all these matters and my finding that the [applicant] had a sexual interest in the complainant and a willingness to act on it, I accept beyond reasonable doubt this offence took place as alleged and that the complainant was under the age of 16 at the time of the offence.  I therefore accept the prosecution have proven all the elements of this charge.

   [74]Reasons [709]–[710].

2. Again, we fail to see any mistake in the judge’s analysis.  We consider that it was well-open to the judge to find the applicant guilty of charge 20.

3. For the foregoing reasons, ground 8 must fail.

   SENTENCE

4. The judge sentenced the applicant to a total effective sentence of four years and six months’ imprisonment, with a non-parole period of two years and six months, in accordance with the following table:

Charge	Offence		Sentence	Cumulation
3	Sexual penetration of a child under 16		1 year 6 months	Nil
4	Sexual penetration of a child under 16		1 year 6 months	4 months
5	Sexual penetration of a child under 16		1 year 10 months	10 months
10	Sexual penetration of a child under 16		2 years 6 months	Base
11	Sexual penetration of a child under 16		1 year 6 months	3 months
12	Sexual penetration of a child under 16		1 year 6 months	Nil
13	Sexual penetration of a child under 16		1 year 6 months	3 months
20	Sexual penetration of a child under 16		1 year 10 months	4 months
Total effective sentence:		4 years and 6 months’ imprisonment
Non-parole period:		2 years and 6 months
Other orders:		Sentenced as a serious sexual offender

1. Leave to appeal against sentence was sought on five grounds:

   1.[The judge] erred by failing to apply at the sentencing stage the legal directions and reasoning applied at trial to the complainant’s broader allegations for which the applicant was either not charged or not convicted.

   2.[The judge] erred in finding that the applicant’s offending contributed to the complainant’s serious disabling psychiatric difficulties.

   3.[The judge] erred by concluding that totality was to be accorded less weight because the applicant was not remorseful.

   4.[The judge] erred by reducing the weight to be given to delay on the basis that the applicant had contested ‘every aspect of the case’.

   5.The individual sentences and total effective sentence were manifestly excessive in light of the principle of totality, delay, restrictive bail conditions, custodial hardship, rehabilitation, and lack of need to specifically deter.

Ground 1

1. Ground 1 sought to impugn the following passage from the judge’s sentencing remarks:

   I am satisfied that these incidents took place in the context of a sexual relationship between you and [EW].  In her statement and in her evidence at the committal the victim detailed regular sexual activity before her 16th birthday, and I have accepted this evidence beyond reasonable doubt.  Of course, I do not punish you for anything other than the charges of which you have been found guilty, but it cannot be said that these were isolated acts.

2. Counsel for the applicant submitted that the judge used the finding of ‘regular sexual activity’ to conclude that the charges upon which the applicant was convicted were not ‘isolated’ and to contribute to a finding that the applicant’s moral culpability was ‘significant’.  The judge provided no reasons, however, explaining how this finding was consistent with the acquittals at trial, unchallenged evidence contradicting aspects of EW’s account, and the unreliable witness, unavailability and forensic disadvantage directions pursuant to which EW’s evidence fell to be evaluated.

3. These submissions cannot be accepted.  EW gave evidence of many sexual acts – charged and uncharged – occurring during her relationship with the applicant.  As the judge said, the relevance of that activity was to put the acts resulting in conviction into their proper context.  In our view, the judge was correct to observe that the offences of which the applicant was found guilty were not isolated acts.  As to that, it cannot be said that the judge improperly aggravated the applicant’s sentence by finding that the offences were committed in the context of an ongoing sexual relationship, particularly given that the judge said that he would not punish the applicant for anything other than the charges upon which he was convicted.

Ground 2

1. By ground 2, the applicant criticised the following sentencing remarks:

   I do not find that the victim’s psychiatric difficulties were exclusively the result of your offences and I accept there were other issues.  However, I am satisfied beyond reasonable doubt that your offending contributed to the serious disabling psychiatric difficulties she endured for many years prior to her death.  It was against the background of her psychiatric issues that [EW] committed suicide; however, in sentencing in this case I make clear that I do not attribute responsibility to you for her death.

2. Counsel for the applicant submitted that the judge did not explain whether the ‘offending’ referred to solely related to the charges in the four incidents of which he was convicted or extended to the broader allegations made by EW.

3. In our view, however, when his remarks are read in context, the judge made it clear that he was sentencing the applicant only for that conduct upon which the applicant had been convicted. 

4. Ground 2 fails.

Ground 3

1. By way of background to ground 3, the applicant had pleaded guilty on 23 February 2007 to 30 counts of sexual offending against children in the period between May 1988 and September 2000 (the present offences having been committed between late 1993 and late 1994).  The applicant was sentenced to 10 years’ imprisonment, with a non-parole period of eight years.  Later, on 3 June 2011, the applicant was sentenced to six years’ imprisonment, with a non-parole of five years, for two charges of indecent assault and six charges of committing an indecent act with or in the presence of a child under the age of 16. 

2. In the result, the applicant spent almost 10 years in custody, before being released on parole in December 2016, that parole expiring in November 2017.  He was then placed on an interim serious offender order which was in place between 23 November 2017 until 20 December 2018, when a final order was made.  In April 2018, the applicant had been directed to reside at Corella Place, and he remained there until he was charged with the instant offences and remanded in custody.  He remained in custody until 1 April 2019, when he was granted bail with a condition that he reside at Corella Place or as otherwise directed by the Post Sentence Authority.  He then lived at Corella Place and Emu Creek until 10 September 2020, when he was directed to reside in the community with his parents.

3. Dealing with the applicant’s earlier offending, in his sentencing remarks the judge said:

   The imposition of those earlier sentences of imprisonment in the intervening period between the commission of the offences in this case and my findings of guilt, requires me to apply the totality principle in formulating the sentences for these charges.  Had these matters been dealt with during the currency of the earlier sentences undoubtedly the application of the totality principle would have resulted in some concurrency with the sentences you were serving.  Therefore, in formulating the sentences in this case, I have taken into account the lost opportunity for concurrency caused by the delay as moderating factor in deciding the appropriate sentences.

4. The judge also said:[75]

   You pleaded not guilty to the charges in this case and that is your right.  You are not to be punished for this, but the mitigation afforded by a plea of guilty is absent.  There is no evidence of the remorse a guilty plea indicates.  There is no evidence of remorse at all.  [EW] never had the benefit of hearing you acknowledge your responsibility for these serious crimes; nor have her husband and family.  Considerations of totality and the weight to be given to delay, which I will deal with later in these remarks, would have been of greater mitigatory significance had you acknowledged your guilt in respect of the charges of which I have found you guilty.

   [75]Emphasis added to this and following remarks.

5. Counsel for the applicant submitted that the foregoing remarks betray error, in that there is no relationship between the principle of totality and remorse.  That being so, the judge erred by reducing the weight to be given to totality.

6. In oral submissions, counsel for the respondent acknowledged that the judge’s remarks showed a ‘lack of precision’ and the ‘demonstration of some error’.

7. It is not entirely clear to us what connection the judge endeavoured to draw between the absence of remorse and the application of the principle of totality.  On the assumption, however, that the judge was wrong to draw any connection at all between the two, we regard the error as immaterial. 

8. In our view, the individual sentences imposed on each charge, and the cumulation effected by the judge’s orders, adequately reflect a proper application of the principle of totality.

9. Ground 3 cannot be upheld.

Ground 4

1. Ground 4 was based on the following sentencing remarks:

   [Defence counsel] submitted that delay is a significant mitigating factor in this case.  These offences took place in 1994.  [EW] made her police statement in May 2018.  You were interviewed and charged in June 2018.  The committal hearing took place in December 2018.  The initial trial date was in March 2020, but the matter did not proceed at that time as I allowed an adjournment for the defence to obtain expert evidence.  The matter would have been able to proceed in 2020 but for the suspension of jury trials in response to the pandemic, although the Interlocutory Appeal would have caused additional delay.  Nonetheless the suspension of trials led to a delay of approximately 12 months.  [Defence counsel] submits that the delay since proceedings commenced has had a deleterious effect [on] your mental health by reason of the stress and anxiety it has caused for you.  I take this into account but observe that some of the delay has been produced by your determination to contest every aspect of the case.  Delay in cases of sexual offending against children is a common occurrence as is recognised by the law. This is because victims of sexual offences often take many years to process what has happened to them and feel ready to come forward. Therefore, the delay in complaint is of less significance in such a case.

2. The impugned remarks were responsive to the submission that the delay had a deleterious effect on the applicant’s mental health by reason of the stress and anxiety it had caused. 

3. Assuming in the applicant’s favour, however, that the criticised remark might be interpreted as the judge taking into account in an adverse way the applicant’s exercise of his right to contest the charges, we do not regard it as material.  The sentences imposed demonstrate that it cannot significantly have influenced the judge’s exercise of the sentencing discretion.

Ground 5

1. Ground 5 contends that the sentence imposed is manifestly excessive, having regard to: totality (given the 10 years the applicant had already spent in custody for offending from the same period); delay; the 529 days the applicant spent on bail in the restrictive (and therefore punitive) environment of Emu Creek and Corella Place; custodial hardship on the basis of Verdins limbs 5 and 6;[76] rehabilitation; and the lack of any need for specific deterrence.

   [76]R v Verdins (2007) 16 VR 269.

2. We do not agree.  Indeed, we consider that, were it not for the factors referred to immediately above, the sentence imposed on the applicant might well have been regarded to be inadequate.

3. The applicant fell to be sentenced for eight charges of sexual penetration of a child under 16, in circumstances where there was no amelioration of sentence flowing from a plea of guilty.  Further, the applicant was not remorseful, and the impact on the victim was significant.  The applicant was to be sentenced as a serious sexual offender on every charge on the indictment, and, as a result, there was a statutory presumption in favour of orders for cumulation as between individual sentences.  In these circumstances, the individual sentences imposed on each charge strike us as very lenient, and the orders for cumulation as very moderate.

4. There is no substance in ground 5.

Conclusion

1. For the foregoing reasons, both the application for leave to appeal against conviction, and the application for leave to appeal against sentence, should be refused.

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