Conolly (a pseudonym) v The Queen
[2019] VSCA 125
•5 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0284
| LIAM CONOLLY (a Pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of the identification of the alleged victim of sexual offending, 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, BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 June 2019 |
| DATE OF JUDGMENT: | 5 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 125 |
| CONVICTION APPEALED FROM: | DPP v [Conolly] (Unreported, County Court of Victoria, Judge O’Connell, 21 June 2018 (Conviction)) |
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CRIMINAL LAW – Appeal – Conviction – Offences alleged between 1978 and 1986 – Applicant convicted of three charges of indecent assault and one charge of gross indecency – Applicant acquitted of one charge of indecent assault, one charge of assault with intent to commit incest and two charges of incest – Prosecution case reliant on credibility and reliability of complainant – Whether verdicts inconsistent – Whether verdicts of guilty unsafe and unsatisfactory – Application for leave to appeal granted – Appeal allowed – Conviction and sentences quashed – Judgment and verdicts of acquittal entered – M v The Queen (1994) 181 CLR 487 applied; Libke v The Queen (2007) 230 CLR 559, MFA v The Queen (2002) 213 CLR 606, Tyrrell v The Queen [2019] VSCA 52 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Malik | Victoria Legal Aid |
| For the Respondent | Mr P L Burke | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA
KYROU JA:
Introduction
An indictment filed in the County Court charged the applicant with sexual offending against his stepdaughter, ‘FJ’,[2] in a period of almost eight years, between 1 September 1978 and 26 February 1986. During that period, FJ was aged between eight and 15 years,[3] and the applicant was aged between 40 and 47 years.[4]
[2]The applicant married FJ’s mother in November 1979.
[3]FJ was born in mid-1970.
[4]His date of birth is 3 March 1938.
The indictment contained four[5] charges of indecent assault[6] (charges 1, 2, 3 and 7); assault with intent to commit incest[7] (one charge – charge 5); incest[8] (two charges – charges 4 and 8); and gross indecency[9] (one charge – charge 6).
[5]The face of the indictment incorrectly recorded that there were five charges.
[6]Charges 1, 2 and 3 were laid under s 55(1) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 1967; and charge 7 was laid under s 44(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980. The maximum penalty in each case was five years’ imprisonment.
[7]Crimes Act 1958, s 52(2) (as amended by the Crimes (Sexual Offences) Act 1980.
[8]Crimes Act 1958, s 52(1) (as amended by the Crimes (Sexual Offences) Act 1980.
[9]Crimes Act 1958, s 50(1) (as amended by the Crimes (Sexual Offences) Act 1980). The jury found that FJ was under the applicant’s ‘care, supervision or authority’. Pursuant to subsection (2)(a), therefore, the maximum penalty was three years’ imprisonment.
Following a trial, on 21 June 2018 a jury found the applicant guilty by majority verdict on three of the charges of indecent assault (charges 2, 3 and 7) and on the single charge of gross indecency (charge 6). Also by a majority, the jury acquitted him of the first indecent assault (charge 1), assault with intent to commit incest (charge 5) and incest (charges 4 and 8).[10]
[10]On 30 October 2018, the judge sentenced the applicant to two years and nine months’ imprisonment on charge 2; nine months’ imprisonment on each of charges 3 and 7; and six months’ imprisonment on charge 6. Two months of the sentence on charge 3, and three months each of the sentences on charges 6 and 7, were ordered to be served cumulatively with the sentence on charge 2, producing a total effective sentence of three years and five months’ imprisonment. The judge fixed a non-parole period of one year and three months.
The applicant seeks leave to appeal against his conviction, contending, first, that the verdicts of guilty on charges 2, 3, 6 and 7 are inconsistent with the jury’s acquittal of him on the other four charges; and, secondly, that the verdicts are unsafe and unsatisfactory.
In our opinion, leave to appeal should be granted and the appeal allowed. We would set aside the convictions on each charge and enter a judgment of acquittal. Our reasons for those conclusions follow.
Relevant principles
Before turning to the evidence, however, it is convenient to summarise the principles that guide the Court.
By virtue of s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), this Court must allow an appeal against conviction if the jury’s verdict ‘is unreasonable or cannot be supported having regard to the evidence’. The test to be applied under that statutory limb is as formulated by Mason CJ, Deane, Dawson and Toohey JJ in M.[11] Thus, ‘the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[12] The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury’s advantage in seeing and hearing the witnesses.[13] Generally, a reasonable doubt about guilt experienced by the appellate court is one that the jury should also have experienced. As was observed:[14]
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.
[11]M v The Queen (1994) 181 CLR 487 (‘M’).
[12]Ibid 493.
[13]M, 492–4; R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
[14]M, 494.
In written submissions, the respondent contended that ‘the test applicable to this ground’ was stated by Hayne J in Libke; that is, ‘the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’.[15] That statement is, however, apt to be misunderstood. Properly viewed, it does not constitute a gloss on the M test, let alone operate as a substitute for it. As this Court explained in Tyrrell:[16]
It is important to bear in mind that, in that passage, Hayne J did not restate the test in terms that were more stringent than that in which it was expressed in M. Rather, by emphasising that the question is whether the jury ‘must’ have entertained a doubt about the appellant’s guilt, Hayne J gave emphasis to the essential test, to be applied by the appellate court, as to whether it was ‘open’ to the jury to be so satisfied beyond reasonable doubt.
[15]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J) (‘Libke’) (emphasis in the original).
[16]Tyrrell v The Queen [2019] VSCA 52, [70] (Kaye, Niall and Weinberg JJA) (‘Tyrrell’).
The argument that two or more jury verdicts are inconsistent ordinarily arises when it is suggested that a conviction resting upon one of the verdicts is thereby demonstrated to be unsafe or unsatisfactory.[17] Where asserted inconsistency arises in jury verdicts upon different charges on the indictment, the test is one of logic and reasonableness.[18] When it is contended that a jury’s verdict is ‘unreasonable’ because it is inconsistent with other verdicts, the relevant test for the purposes of s 276(1)(a) of the CPA remains one of unreasonableness.[19]
[17]MacKenzie v The Queen (1996) 190 CLR 348, 365 (Gaudron, Gummow and Kirby JJ) (‘MacKenzie’).
[18]Ibid 366.
[19]MFA v The Queen (2002) 213 CLR 606, 618 [36] (Gleeson CJ, Hayne and Callinan JJ) (‘MFA’).
In a case such as the present, which turns on the credibility and reliability of the complainant’s evidence, it must be borne in mind that a verdict of not guilty on one or other charge does not necessarily signify a general lack of confidence in the complainant, or that the complainant has been disbelieved. Some jurors may have required supporting evidence before being prepared to convict on the testimony of the complainant; so that, even though a juror might consider it probable that the complainant’s evidence is truthful and accurate, the juror might require something additional before being able to reach a conclusion beyond reasonable doubt. Thus, factors that might make a jury cautious about reaching a conclusion beyond reasonable doubt in relation to aspects of the complainant’s evidence might include that she has shown some uncertainty as to matters of detail; has been shown to have a faulty recollection of some matters; or otherwise has been shown to be more reliable about some parts of her evidence than about others.[20]
[20]Ibid 617 [34]. See also Tyrrell, [74]–[77].
The evidence
In summary, the evidence at trial was as follows.
At the time that she met the applicant, ‘SG’, FJ’s mother, had two other children, ‘JJ’, her son, and ‘NJ’, her other daughter. FJ said that she was introduced to the applicant by her mother in 1978, just after she had turned eight years of age. She was living with her mother, brother and sister, in Richmond.
Charge 1 – Indecent assault: between 1 September 1978 and 31 October 1978 (Not Guilty)
FJ said that on the first occasion she met the applicant she was on a couch in the lounge room of the home she shared with her mother and siblings. She described the applicant’s offending as follows:
He got me to sit on his knees, straddled over like that face to face. … He put his hand on my vagina. … He started rubbing me. … I had long pants on and a top. … [He rubbed ‘over’ the clothing] … I bit him. … my mum stepped in and she bit me for lying. … I told her what had happened because she always asked me to tell the truth and she called me a liar and bit me. … I was sent to my room.
The complainant said that after this incident, she, her mother, brother and sister, moved into the applicant’s house, also located in Richmond. She said that the applicant would punish her if she upset her mother or disobeyed him. A diagram of the applicant’s house, hand-drawn by the complainant, was tendered (Exhibit A), and purported to represent the house in the period ‘1979–1981’.
FJ’s account of her first encounter with the applicant was contradicted by her mother. SG gave evidence that FJ and the applicant ‘weren’t introduced, she just walked up to him and bit him’. SG said that FJ stated that she did not want the applicant in the house. At the time, SG ‘was standing in the doorway of the lounge and the kitchen’. FJ ‘just appeared there’. SG said that she did not react in any way after FJ bit the applicant. Under cross-examination, SG said of FJ that: ‘She used to bite people, children, adults ... She was a biter … she just bit people in general. She didn’t think about it, she just did it’.
Charge 2 – Indecent assault; on or about 6 April 1979 (Guilty)
FJ gave evidence that her mother gave birth to a son, ‘MG’, in April 1979, when FJ was aged eight years, ‘not quite nine’. While her mother was in hospital, FJ was looked after by the applicant and her ‘nan’. FJ usually slept in a bedroom which had two bunks and a single bed, but she believed that at the relevant time she was sleeping on a couch in the lounge room. She gave evidence that the applicant woke her up to offer her a glass of sarsaparilla. That was her favourite drink, which she generally was not allowed to have. FJ described the offending as follows:
I was quite asleep really, still, and I was a child, so my reaction was glass of sarsaparilla, it was like – I don’t know how I reacted really, it was sort of, I’ll take that glass of sarsaparilla. I’m a child and … he asked me to come into the bathroom and got me to stand up on the toilet between the – he got me to stand so my leg was on the side of the bath and one leg on the toilet and I had – my legs were spread and I had my glass of sarsaparilla in my hand here. … I was wearing a gauzy pinkie-brown nightdress, and I didn’t wear underpants. ... He gave me a head job. … He ah, got me to spread – my legs were spread and he – he utilised his tongue inside my vagina and – and – it’s very hard to explain – and he continued to lick me out. … To me as a child, it felt like an hour, but it would have been only about ten, 15 minutes, I guess.
The applicant, FJ said, told her not to upset her mother. FJ did not drink the sarsaparilla because she was ‘too scared’. A diagram of the bathroom, hand-drawn by the complainant, was tendered (Exhibit B). Referring to the diagram, FJ said:
I stood with my feet one foot on this bath part here and a foot onto the toilet on this side. … [The applicant was] underneath here. … I was standing spread-eagled there and he was underneath, in between the toilet and the bath [indicating below the angle of the bath and in the vicinity of where the toilet is marked].
As will be seen, FJ had previously provided an account which was different in material respects.[21] Thus, in her statement of 24 July 2007 she said that her nan was not present. In the statement she also claimed that when the applicant woke her up she was in her own bed, rather than on the couch. In cross-examination, she gave the following evidence on the topic:
And then you also told the jury yesterday that you now believe that you had been sleeping on a couch in the lounge room at that time, so that your nan could sleep on your bed?---Yes, it took me – I could never work out how he got me from the bedroom and not wake up my siblings, and why hadn’t I walked down there, and then it come to me after I’d been talking it out with statements and everything, it was actually on the couch.
[21]See [52] below.
SG gave evidence casting further doubt on FJ’s account. She said that FJ always had to wear underpants to bed, and that the children drank cordial (she did not think that sarsaparilla was ever in the house). Much more importantly, when shown the diagram of the bathroom at the Richmond premises, Exhibit B, SG said that the toilet was depicted as being in the wrong place. She said that the distance between the toilet and the bath was ‘probably four feet’, with a basin in between. The significance of that evidence is, of course, that if it were accepted (or created a reasonable doubt about the accuracy of FJ’s description of the layout of the bathroom), the mechanism by which the applicant was alleged to have performed oral sex would have been virtually impossible.
Further, SG’s evidence was that, after MG was born, she was in hospital for two or three days while her mother, ‘nan’, looked after the children. SG said that her mother stayed for about six weeks, and ‘slept in the bedroom the three children were sleeping; she slept on a bottom bunk’. There were two sets of bunks, SG said. On one set of bunks, FJ occupied the top bunk, and her mother slept on the bottom. On the other bunk bed, JJ was on the top, and NJ was on the bottom. The significance of this evidence, of course, is that contrary to FJ’s account, not only was her nan present in the house, but she was there for six weeks, sleeping in a bed beneath FJ. The complainant did not, as she asserted, sleep on the couch. Clearly, a version of events which relied upon the applicant being able to take FJ undetected from her bed in a room in which her grandmother and siblings were located, and remove her to a bathroom so as to accomplish sexual improprieties unnoticed, would have been wholly implausible.
Charge 3 – Indecent assault: between 1 December 1979 and 28 February 1981 (Guilty)
FJ gave evidence of another incident at the applicant’s Richmond home. It happened, she believed, ‘Christmastime, school holidays’ of 1980 going into 1981. (Other evidence revealed that SG and the applicant had by this time married.) The incident, she said, occurred at about six or seven in the evening, during ‘daylight savings’, when ‘the sun was going down’. FJ believed she would have been wearing ‘shorts and a T shirt’ at the time. She fixed the time according to the birth of another brother, ‘DJ’, in April 1980:
There was an evening where [the applicant] got drunk and I – sorry. I’ll start again. [The applicant] had gone over the road to have a couple of drinks with some people. He came back and hopped into bed. Then he asked me to come into the room and made me stand to the side of him while he – he [laying in bed] played with me on the vagina. … He took his hand and placed it on my vagina and [making a cupping motion] … I thought it was over my pants but it was definitely inside my pants and he played. I didn’t move because I didn’t want to upset him or my mum. … It would be the left, left hand. … I didn’t [respond when he touched me that way]. I froze.
FJ drew a diagram of the bedroom where this incident took place, showing the position of the applicant on the bed and her position beside it (Exhibit C).
After this incident, ‘in 1981 or thereabouts’, the family moved to the suburb of Thornbury, where they remained until 1986 or 1987.
Notwithstanding FJ’s evidence that the applicant had been drinking and was drunk, SG gave evidence that the applicant did not drink alcohol.
Charge 4 – Incest: between 1 January 1982 and 28 February 1982 (Not Guilty)
FJ gave evidence that another brother, ‘NG’, was born in August 1981. In ‘late 1981’, FJ believed, the family acquired a caravan, and the family would ‘go caravanning’ to ‘get rabbits’. Before her sister, ‘LG’, was born, while FJ’s mother was pregnant with LG, the family ‘did a trip to Wedderburn and stayed there a few weeks’. (LG was born in September 1982, when FJ had ‘just turned 12’.)
FJ gave the following evidence about an incident on that trip:
When we went to go get the rabbits we went out ferreting and we went away from the caravan to where the rabbit warrens were. Usually it would be my brother, my sister and myself and we’d help carry the gear. We’d help sit beside the holes waiting for the rabbits. On our way back [the applicant] stopped me behind the logs [like tree branches, just laying down] and he – I had to give him a head job. … [My brother and sister] were walking on ahead. … [The applicant] pulled his penis out of his overalls and I had to give him a head job.
The complainant said that he indicated that he expected a ‘head job’ by pointing at his penis with his finger. She had to continue until the applicant was able to ejaculate. This was not the first time, she said, that he had asked her to put his penis in her mouth.
SG gave evidence, however, that her sons JJ and MG went with the applicant to set up the nets for ferreting, but that she could not remember FJ (or NJ) going.
Charge 5 – Assault with intent to commit incest: on or about 9 September 1982 (Not Guilty)
FJ gave evidence that, while her mother was in hospital following the birth of LG, a neighbour, ‘Verna’, and the applicant looked after her, and her brothers and sisters. Verna cared for the children whilst her mother was in hospital, and the applicant returned home shortly after the birth and offended against her. FJ gave the following evidence of what the applicant allegedly did:
Um, he woke me up, and offered – I’ll start that again. During the day I’d asked for an ice cream, and I was told no. Well that – that night, I was woken up. … [The applicant] offered me an ice cream. So he made me an ice cream in a cone and then he took me to his bedroom and then tried to have sex with me. … Um, he laid me down on the bed. Um, I’d put my ice cream onto the side dresser, and he proceeded to try and open my legs. He had no underpants on, and um, he didn’t – he didn’t penetrate me, but it was very close.
The applicant was ‘on top’ over her, with his feet ‘down the end of the bed’, and with his penis erect. He was forcing her legs and knees open with his hands. FJ ‘fought’ and ‘was screaming’. The following happened after she screamed:
He forced it for a little bit longer and I could – he was winning a little bit, but I um – he ended up letting me go, ‘cause I got too loud. I must have got too loud. … [The incident ended when] I ran – I went to my room and I left my ice cream.
SG gave evidence she was in hospital for a period of 24 hours after the birth of LG in the evening of 9 September 1982. She said that while she was in hospital the children were cared for by a friend, ‘HT’ — not Verna — and the applicant was at the hospital for some hours.
FJ also gave evidence that ‘about a month after the incident’ she told her mother that the applicant was ‘touching’ her, but did not give her mother any detail. LG had been born by then. Significantly, however, the prosecution did not lead any evidence from SG confirming that such a complaint was made to her (something that, it might be expected, a mother would remember). FJ said she also spoke about the touching to a school friend ‘M’, but she ‘didn’t go into deep detail’. M responded that ‘we don’t talk about these sort of thing’. A statement by M, dated 25 February 2015, was read into evidence. She and FJ were friends in years seven and eight, and started doing ‘sleepovers’ in year seven. Among other things, M said:
I can’t remember [FJ] telling me about her father hurting her but it’s been so long since I knew her. I can’t say that she never told because she could have. It’s just that I can't remember.
Charge 6 – Gross indecency: on or about 6 April 1984 (Guilty)
FJ’s brothers MG and DG shared a birthday. When it was their ‘fifth and sixth birthday’ respectively in 1984, the applicant asked FJ to stand in front of the shed window while he masturbated. She ‘wasn’t allowed to move until he was finished’. The applicant was inside the shed at the Thornbury property, and the complainant was on the outside. She knew what the applicant wanted her to do, she said, because ‘he used to do a little dance, like he’d just go sort of give his hips a bit of a movement to show me that’s what he wanted me to watch’. The incident ended with FJ watching the applicant ejaculate. All of the family were home at the time. That activity, FJ said, had occurred ‘previously’.
In cross-examination, FJ said that her mother from the kitchen window would see her standing in front of the shed doing nothing (while the applicant masturbated) and tell her off for doing nothing.
SG gave evidence, however, that she never told FJ to stop standing at the window looking into the shed. From her position at the kitchen window, SG said, she ‘could see part of the way’ into the shed.
Charge 7 – Indecent assault: between 1 June 1984 and 31 August 1984 (Guilty)
FJ said that at a time close to April 1984 the applicant ‘would look through the bathroom window while [she] would have to strip and do the old lift the arms over the head, do the bend over, do the circling’. At the beginning of 1984, when she was going into year seven, her cousin ‘T’ came for a weekend. FJ gave evidence that the following occurred in the lounge room:
Um, my younger sister, [NJ], and [T] was watching through the window while I walked through the house to try and prove that this man was doing bad things, and he pinned me to the floor and he proceeded to masturbate me. And it hurt. … He pinned me to the floor, took his hand and rubbed me on my vagina.
Contrary to FJ’s evidence, SG gave evidence that the bathroom window was ‘frosted’, and that ‘someone standing outside the bathroom window could not look in’.
FJ gave evidence of other sexual activity involving the applicant that occurred at the Thornbury residence. She ‘used to rub his penis over the top of his pants and then it moved on to where he’d bring it out if there was no one around’. That ‘happened all the time’. FJ gave evidence that (ostensibly around February 1986) the following also occurred:
I went inside the caravan and I stripped down to a nakedness so that he could watch me through the back of the window. So where I marked the cross is where he would stand at the back. So that was - he would - I would physically strip and do circles and bendovers and he would watch through the window. … I’m just allowing it all to come through – all the memories to come back in. That particular occasion – 1986, February – that was the stripping one.
Charge 8 – Incest: on or about 26 February 1986 (Not Guilty)
FJ had another brother, ‘PG’, born in February 1984. He was a sickly child, and passed away in February 1986. Within a week of his death, FJ ‘had a smoke for the first time’ in front of her mother and the applicant. Through ‘physical actions’ the applicant indicated that she ‘should go round the back of the shed’ at the Thornbury property. He asked her to go into the caravan and made her ‘give him a head job’. FJ’s evidence was:
I can’t a hundred per cent remember now but I remember walking – being taken around the back of the caravan. I had to get down on my knees. He took his penis out and I proceeded to give him a head job. By then I’d become quite adept at it.
FJ said that the applicant ejaculated into her mouth ‘and I had to swallow’.
In 1986, FJ twice ran away from the home in Thornbury. She moved to Tasmania in 1987, and then to South Australia in October 1997, returning to Tasmania in January 2000. In July 2007 she made a statement to police, providing a further statement on 4 November 2013.
FJ’s cross-examination and re-examination
Immediately prior to the commencement of FJ’s cross-examination by defence counsel, the trial judge granted FJ a certificate under s 128 of the Evidence Act 2008 with respect to offences of ‘drug use’ and ‘telling lies on oath’. As she was told by the trial judge, the certificate ‘provides [her] with a form of protection against incrimination‘.
Under cross-examination, FJ said that she moved from Victoria to Tasmania in 1987, where she remained until moving to South Australia in October 1997. She gave evidence that she did not complain to the police about the applicant until July 2007; and that, in November 2013, she was asked to provide a further statement to police, which she did on 4 November 2013.
FJ agreed that she moved back to Tasmania from South Australia in January 2000, and started counselling sessions in the ‘centre against sexual assault in Burnie’. She agreed that she told the counsellor that her neighbour had taken away her happy childhood by sexually abusing her at age six, and that ‘around the same age her older male cousin began touching and assaulting her at every opportunity’. Notwithstanding what she had said to the counsellor — she agreed that she had said it — FJ gave evidence that she had performed oral sex on her neighbour twice, and once on her cousin.
In 2002, FJ testified, she returned for further counselling sessions at the centre against sexual assault and saw a different counsellor. She agreed that she told the counsellor that between the ages of six and 16 she was sexually assaulted by three different males. FJ was then taken to evidence that she gave on oath at the applicant’s committal proceedings on 18 August 2015, in which she had denied ever making ‘any allegations of a sexual nature against anyone other than [her] stepfather’. There was then the following exchange:
So do you agree, [FJ], you lied on your oath at the committal hearing?---Yes, I did lie.
And can I suggest to you one of the reasons you didn’t want anyone to know about the abuse by your neighbour and cousin, is because you didn’t want the focus of attention to be taken away from [the applicant]?---That’s true.
FJ gave evidence that she saw a psychiatrist in 1998, who diagnosed her with bipolar disorder. She took the medication that had been prescribed for that disorder ‘once’. FJ also apparently agreed that during counselling in 2000 she had told the counsellor the following (as recorded in the counsellor’s notes):
[FJ] trying to find herself and make sense out of confusion. Has five parts to self. Sees parts as friends or guides. For [FJ], they serve a purpose, but her human friends think she is crazy and having psychotic episodes. Has had problems with depression. [FJ] states that some of the different parts to her are verbal, and she has heard them talk to her. Others give information which [FJ] is driven to write down. Has been scared of these episodes, but after discussing them, [FJ] feels they are benevolent and helpful, looking out for her, and therefore are friends.
FJ agreed that one of the ‘five parts’ manifested itself as a ‘blue person’, and another as ‘a little girl’, and the different parts ‘talk’ to her and give her ‘information’.
From about 1997 until 2015 or 2016, FJ said, she used marijuana, usually ‘a couple of joints a day’. She also started using ‘speed’ (amphetamines) in 2002 or 2003, and she did ‘two trips’ on LSD.
FJ agreed that she returned to counselling after making her first statement to police, and she appears to have agreed with the contents of a counsellor’s note on 8 August 2007:
[FJ] says she [has] different characteristics in herself all the time and will probably not present as normal or together as she has today. Some days when she has manic depression she says she has no control over what is happening.
FJ also agreed that, apart from the one time that she had taken medication prescribed by her psychiatrist in 1998, she never took any medication for her ‘distorted thought patterns’. And when asked whether ‘these distorted thought patterns’ had affected her ability to retain, recall and recount past events when she came to make her statement to police in July 2007, FJ replied, ‘Yes and no’. She said that she ‘suppressed’ the applicant’s sexual abuse.
When asked about her interaction with her friend PE in Tasmania in 1996, FJ gave evidence that PE gleaned from the cards that someone was scaring her. It was only after PE read the cards and asked who the man scaring her was that FJ nominated the applicant.[22] FJ denied that her mother was present when this occurred, or that she had told her sister, LG, that a friend of hers had done a Tarot card reading for her and was able to tell that she had been molested as a little girl.[23]
[22]See [58] below.
[23]See [57] below.
FJ said that the applicant lived on a bus at the back of her property in Tasmania in 2000, and as part of that arrangement she repaid a loan that the applicant had made. She denied that after he had left, she wrote him a letter ‘saying that unless he gave [her] $4,000 [she was] going to tell the police he touched [her] up as a kid’. As to the conversation with her brother, DG, at the supermarket, FJ gave evidence that she did not say a word, only DG having spoken.[24]
[24]See [60] below.
Asked about the circumstances of charge 1, FJ disagreed with the suggestion that the applicant ‘never touched [her] on the vagina’.
As to the circumstances of charge 2, FJ agreed that, contrary to her evidence — in which she said that her nan had ‘come down’ so that she, FJ, was sleeping on the couch — she had told police in her statement of 24 July 2007 that her nan was not present. She also agreed that when she made her statement she had said that when the applicant woke her up she was in her own bed. FJ explained apparent discrepancies by saying that ‘after time and healing, [she] started to put everything together in [her] brain better’. When challenged about where she depicted the toilet to be in Exhibit B, she asserted that the toilet was where she depicted it to be. FJ also asserted that the oral sex she described did occur.
With respect to charge 3, FJ said that she saw the applicant drinking beer. She agreed that she had given evidence at the committal that she only knew that the applicant had been drinking because her mother told her so, and explained the reasons for the change in her evidence as follows:
‘Cause I’ve emptied my brain enough to allow new memories to come through. So I’m trying to be as honest as I can with what I’m remembering today.
When asked about the bathroom window of the Thornbury residence, FJ denied that it was ‘frosted’. She denied the suggestion that the applicant never had her undress so that he could watch her. As to the position of the shed, FJ agreed that the door of the shed could be seen from the kitchen window where her mother would stand. FJ said that while she would stand at the shed door watching the applicant masturbate, her mother ‘used to watch [her] stand there and yell at [her] for not doing anything’. Her ‘mum used to stand there and watch [her] and then [she’d] get into trouble for not moving’. FJ disagreed with the suggestion that the applicant never made her watch him masturbate in the shed.
FJ said that it was her evidence that the applicant would make her give him oral sex after LG was born in September 1982. She agreed that the applicant had a hernia operation on his groin shortly after LG’s birth. Her mother used to tell her that the applicant could not maintain an erection, but FJ insisted that the applicant made her give him oral sex. She denied suggestions that the applicant never made her perform oral sex; that he never made her rub his penis over the top of his pants; and that he did not try to have sex with her.
In re-examination, FJ gave the following answer to the following question:
You told the jury that there’s a lot of stuff that’s started to come back up. What has happened to refresh your memory of the occasion when [MG] was born?---I’ve been able to tell my truth and although it was very confusing put it all together, it was – it was only by telling that truth that the real memories started to come up properly. Um, and I started to heal, so in that healing process, all the muddle and the confusion and the fear and all the denial started to go away, and I had a good counsellor helping me as well.
Other evidence
LG was born in September 1982. FJ, her sister, is about 12 years older than she is. In about 2004 or 2005, FJ had a conversation with her. LG gave evidence that FJ told her that during a Tarot reading by a friend, the friend could see in the cards that FJ ‘had been molested by a 50 year old man when she was five years old’, and ‘that when she was five years old a 50 year old man had made her suck his dick’. When LG pointed out that it could not have been the applicant, because he was not around when she was aged five, FJ replied: ‘It doesn’t matter who did it, somebody has to pay for it’.
‘PE’ was a neighbour and friend of FJ, whom she met before the birth of her daughter in November 1995. She gave evidence that she and FJ would drink tea, play cards — sometimes Tarot cards — listen to music and gossip. FJ told her that she’d been sexually abused by her stepfather — the ‘only thing I can remember is she was in a bed and he touched her genitalia’ — and that she had told her mother, but was not believed.
SG gave evidence of being present at a Tarot card reading conducted by PE. Under cross-examination by defence counsel she described the meeting as follows:
On this occasion that we’re talking about, being the tarot card reading, was it just you, [PE] and [FJ]?---Yes.
All right. And did [FJ] introduce you to [PE]?---Yes.
Was anyone smoking any marijuana on this occasion?---Well [FJ] and [PE].
…
Was [PE] doing the tarot card reading?---Yes.
And she was doing it for [FJ]?---That’s right.
Do you recall what, if anything, [PE] said to [FJ] when she was doing the tarot card reading?---Um, she said that in her past there was a dark or black haired man who had molested her.
DG, who was born in April 1980, said that his father — ‘very distressed’ — had shown him a letter from FJ, in which she said, ‘if you don’t give me $4000 then I will be going to the police and telling them that you touched me as a child, something along those lines’. He asked the applicant if it was true, and the applicant told DG that ‘it never happened’. DG also said that FJ stopped him in the supermarket ‘and started on a rant and rave about how she was touched when she was four years old by Dad’. Under cross-examination, DG said that he had never seen his father ‘do anything sexually inappropriate’ with FJ.
In his record of interview, conducted on 24 March 2011 (when he was aged 73), the applicant told police that his relationship with FJ was ‘poor’, because ‘out of the blue’ she had bit him hard on the arm when he started dating her mother and said, ‘I don’t like you’. He denied each allegation of sexual offending put to him by police; said that he was not a drinker; and said that SG was always at home. Referring to FJ, the applicant said: ‘She must be very bitter. Why would she say things like that?’. He said he was ‘shocked’ by the allegations.
Applicant’s submissions
The applicant’s counsel submitted that — save for charge 4 — the sexual activity alleged was all said to have taken place in the family home. Given the nature and frequency of the alleged offending, so it was submitted, it is unlikely that such activity could have taken place without detection by other family members. Both SG and DG gave evidence, however, that they did not observe any sexually inappropriate behaviour between the applicant and FJ. It was submitted that the high risk of detection meant that the jury should have considered it unlikely that the offending took place.
There is, counsel submitted, a factual or logical inconsistency between the verdicts returned by the jury, such that no reasonable members of the jury, who had applied their minds properly to the facts could have arrived at verdicts of not guilty on charges 1, 4, 5 and 8 and guilty on charges 2, 3, 6 and 7. This is so because the prosecution case in relation to all charges turned on the credibility and reliability of FJ and no reasonable jury could have distinguished between FJ’s credibility on charges 2, 3, 6 and 7 and the other charges. Furthermore, counsel submitted, a number of matters bearing on FJ’s credibility and reliability should have led the jury to have entertained a reasonable doubt about the applicant’s guilt on the four charges upon which he was convicted. In summary, those matters included:
·After a Tarot reading, FJ told LG that when she was five years old a 50 year old man had made her ‘suck his dick’. When LG pointed out that it could not have been the applicant, FJ said: ‘It doesn’t matter who did it, somebody has to pay for it’.
·DG gave evidence of seeing a letter from FJ seeking to extort money from the applicant.
·DG said FJ had told him that the applicant had touched her when she was aged four (yet FJ was aged eight when she first came into contact with the applicant).
·FJ gave evidence at committal proceedings in which she denied having made sexual allegations against anyone other than the applicant, yet she had told a counsellor in 2002 that she had been sexually assaulted by three different males. Ultimately, FJ admitted lying under oath.
·FJ had been diagnosed with bipolar disorder; and had told a counsellor that she had five parts to herself and ‘had heard them talk to her’.
·Shortly after she complained to police, FJ had told a counsellor that she was ‘swinging from mania to depression’.
·FJ said that she had ‘suppressed’ the applicant’s alleged sexual abuse.
·In relation to charge 2, on SG’s evidence of the layout of the bathroom, the offending simply could not have occurred.
·As to charge 3, on SG’s evidence and the applicant’s own account in the record of interview, the applicant did not drink, rendering FJ’s evidence that the applicant was ‘drunk’ improbable.
·Relevant to one of the uncharged acts, FJ had said that the applicant would stand outside the bathroom window of the Thornbury home and watch her strip, yet SG’s evidence was that the window was frosted, rendering FJ’s account impossible.
·The prosecution case on all charges turned on the credibility and reliability of FJ. No reasonable jury could have distinguished between her credibility on charges 2, 3, 6 and 7 and the other charges. This was so since there was no other evidence to support FJ’s evidence on any charge. Indeed, the other evidence called by the prosecution on charges 2 and 3 did not support FJ’s evidence.
·The evidence of a supposed complaint by FJ to her friend M was not supported by M.
Respondent’s submissions
The respondent’s counsel submitted that the jury were entitled to reject the evidence of LG and DG. FJ denied having had the relevant conversation with LG. Counsel also attached some significance to the fact that the letter said to have been sighted by DG was ‘not in evidence’ (despite the fact that, in her final address to the jury, the prosecutor had argued that it did not matter that the letter was not in existence).[25]
[25]In her address, after referring to DG’s evidence about the contents of the letter, the prosecutor said:
[DG] couldn’t remember what had happened to the letter. He said that his father did have it away somewhere, but he ended up losing it. So you have an account of the letter, but the letter cannot be produced.
He told you that after reading it, he asked his father whether it was true, and his father told him, ‘It never happened’. He couldn’t recall the exact details of the remainder of the conversation. He told you that he believed his father at the time. ‘At the time I didn't have any reason to doubt him’.
A couple of things there, members of the jury. Firstly, it’s not a matter of whether [the applicant’s] family believe him or not. The question is, who do you believe? And the other thing is, obviously [the applicant] doesn’t have to prove anything, so it doesn’t matter that the letter is not in existence. Obviously it would be helpful if it were, but he doesn’t have to prove anything.
As to FJ’s lies at the committal hearing, the respondent’s counsel submitted that FJ had admitted to lying when asked whether she had made allegations of sexual abuse against persons other than the applicant, accepting that the reason she lied was so as not to take attention away from the applicant. That, so it was argued, was ‘an admission against her interest which ultimately gave her evidence greater credibility’. The jury ‘were entitled to view the lie told at the committal in isolation and not assume all of the complainant’s evidence was false’.
Counsel for the respondent submitted that, despite the evidence that FJ told a counsellor that she saw herself as having five different parts and hearing those parts talk to her, this matter was not explored in any detail. It was not suggested to the jury, so it was submitted, that FJ’s untreated bipolar disorder, or her discussions with her counsellor, led to her having a false memory.
Further, the respondent’s counsel submitted, FJ denied that she had ‘confused’ the abuse she had suffered at the hands of her neighbour and cousin for the actions of the applicant. The allegations against the neighbour were that oral sex had taken place with FJ on two occasions; and in relation to the cousin, the evidence was that the cousin had touched FJ and engaged in oral sex on one occasion. In the absence of any further detail, counsel submitted, it would be difficult for the jury to assess whether the complainant was confused; but it was open to the jury to accept her denial that she was.
Counsel for the respondent argued that conflicts in the evidence between FJ and her mother regarding the layout of the bathroom in Richmond, whether the bathroom in Thornbury had a frosted window and the drinking habits of the applicant, were not of such significance as to render FJ’s evidence unreliable. It was submitted that the jury were entitled to reject the evidence of SG; or, alternatively, consider the conflicts of no moment.
The respondent’s counsel submitted that it cannot be assumed offending of this nature could not have happened in the manner alleged, since it is not uncommon for sexual offending against children to take place in the family home in circumstances where other family members are present or could detect the offending.
Importantly, counsel argued, the jury had the advantage of hearing and seeing FJ give evidence. Despite some conflict in the evidence, the advantage enjoyed by the jury is significant in assessing her evidence.
With respect to the suggested inconsistency in the verdicts, counsel for the respondent submitted that the verdicts are not an affront to logic and reasonableness and may be reconciled.
Hence, in relation to charge 1 (acquittal), FJ’s evidence was not supported by her mother who was present at the time she bit the applicant. The jury must therefore have had a reasonable doubt regarding the allegation that the applicant touched FJ’s vagina while she was on his lap, since it would be expected that SG would have supported FJ’s account beyond the fact that she bit the applicant.
As to charge 4 (acquittal), counsel for the respondent submitted that SG did not support FJ’s account that she would go ‘ferreting’ with the applicant. SG did not recall FJ accompanying the applicant on such expeditions, the evidence being that the applicant would ferret alone or with MG.
With respect to charge 5 (acquittal), the respondent submitted that there was a discrepancy in the evidence as to who was present at the family home on the night the offence was said to have occurred. SG gave evidence she was in hospital for a period of 24 hours after the birth of her daughter LG in the evening of 9 September 1982. She said that while she was in hospital the children were cared for by a friend, ‘HT’, and the applicant was at the hospital for some hours. On the other hand, FJ gave evidence a neighbour, Verna, had cared for the children whilst her mother was in hospital, and that the applicant returned home shortly after the birth and offended against her. Furthermore, FJ gave evidence she screamed loud enough to be heard whilst being offended against.
In relation to charge 8 (acquittal), the respondent’s counsel submitted that FJ gave evidence the offence occurred after the death of her brother PJ in 1986. Although SG gave evidence that the applicant by that stage suffered from erectile dysfunction following treatment for a hernia subsequently to the birth of LG in 1982, the evidence was not that the applicant’s penis was unable to become erect, but rather that he had difficulties in obtaining an erection. Counsel further submitted that the charges on which the applicant was convicted post-1982 do not conflict with this evidence. Thus, charge 6 (conviction) relates to FJ watching the applicant masturbate; and charge 7 (conviction) relates to the applicant rubbing FJ’s vagina with his hand.
Finally, counsel for the respondent submitted that the issues of the layout of bathroom; the sleeping arrangements with FJ’s grandmother; whether sarsaparilla was in the house; and whether the applicant drank alcohol, were peripheral by comparison to the conflicts in the evidence in relation to the charges for which the applicant was acquitted. It was thus open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant in relation to the remaining charges.
Discussion
As we have mentioned, the jury found the applicant guilty of charge 2 (indecent assault); charge 3 (indecent assault); charge 6 (gross indecency); and charge 7 (indecent assault). The activity alleged in those charges respectively involved allegations that the applicant licked FJ’s vagina in the bathroom at Richmond; the applicant touched FJ’s vagina in a bedroom at Richmond; the applicant masturbated in the shed at Thornbury, watched by FJ; and the applicant rubbed FJ on the vagina in the lounge room at Thornbury, whilst NJ and T looked on through the window. There was no evidence that supported FJ’s account of the activities upon which these charges were based. Self-evidently, therefore, the jury’s acceptance of FJ’s credibility and reliability was a necessary prerequisite to conviction on each one of them.
The jury found the applicant not guilty on charge 1 (indecent assault); charge 4 (incest); charge 5 (assault with intent to commit incest); and charge 8 (incest). Thus, the jury acquitted the applicant with respect to allegations that he touched FJ on the vagina during their first encounter (charge 1); that he tried unsuccessfully to have sex with FJ (charge 5); and that he penetrated FJ’s mouth with his penis (charges 4 and 8), something that FJ claimed occurred regularly. As a matter of strict logic, it must be the case that the jury could not be satisfied of FJ’s credibility and reliability on these charges.
Notwithstanding the apparent incongruity accompanying the jury’s acceptance of FJ’s credibility and reliability with respect to half the indictment, and their rejection of her credibility and reliability with respect to the other half, the respondent asserts that the apparent anomaly is explicable.
Before turning to the respondent’s arguments in that regard, it is necessary first to say something of the verdict of not guilty on charge 1. With respect to that verdict, one might readily appreciate why the jury might have felt compelled to acquit the applicant. Not only was FJ’s account of the alleged offending highly improbable, but it was flatly contradicted by her mother’s evidence. Indeed, given the state of the evidence, a verdict of guilty would have been perverse. But the jury’s acquittal of the applicant on the charges relating to attempted penile-vaginal penetration (charge 5) and the penile-oral penetrations (charges 4 and 8) are not so easily explained.
On charge 5, the respondent submitted that a possible basis for the applicant’s acquittal was the discrepancy in the evidence as to whether the children were looked after by Verna or HT, or FJ’s evidence that the applicant desisted from his attempt to penetrate her because she ‘must have got too loud’. Neither of those things strikes us as a satisfactory explanation for the jury’s non-acceptance of FJ’s account. Indeed, we consider that the only acceptable explanation for the acquittal on this charge is that the jury were not prepared to accept FJ as a credible and reliable witness with respect to offending of the relative seriousness alleged in charge 5.
Turning to the verdicts of not guilty on charges 4 and 8, each allegation of penile-oral penetration fell to be considered against the background of FJ’s assertion that penile-oral penetration was a frequent occurrence.[26] The only basis suggested by the respondent’s counsel for the acquittal on charge 4 is that SG had said that she did not remember FJ ever going ferreting with the applicant. On charge 8, a possible basis for the acquittal is SG’s evidence that the applicant suffered erectile dysfunction after a hernia operation in 1982 (although FJ’s explanation for the applicant’s difficulty getting an erection was that ‘he’d already got rid of his stuff’; ‘He’d already ejaculated over these times so how was he going to get an erection at night?’). Once again, we do not regard these explanations as being very satisfactory. Once more, we consider that the only cogent explanation for the verdicts of not guilty on these charges is that the jury were not prepared to accept FJ as a credible and reliable witness with respect to offending of the relative seriousness alleged in charges 4 and 8.
[26]In his charge, the judge directed the jury that they could use this evidence ‘to establish the context in which the charged offending occurred’. He instructed the jury that the evidence of context had been admitted to establish that FJ was not describing an isolated event or something that has occurred ‘out of the blue’ (which might have rendered her account implausible). The evidence was admitted to help the jury to assess and evaluate the other evidence in the case in a true and realistic context. The judge told the jury that the evidence was also relied upon ‘to explain the conduct or state of mind of the complainant’, and ‘to help explain why the accused felt able to offend in circumstances that involved what you might consider to be a high risk of detection’.
Putting the first charge to one side, despite the jury’s reluctance to convict the applicant of the comparatively more serious offences on the indictment — those offences involving a forcible attempt at sexual intercourse (charge 5) and penile-oral penetration (charges 4 and 8) — the jury were, as we have said, prepared to convict the applicant of the relatively less serious offences, involving lingual-vaginal contact (charge 2); the applicant allegedly touching FJ’s vagina over her clothing (charges 3 and 7); and the applicant allegedly masturbating in front of the complainant (charge 6).
As we have explained, all of the charges in the indictment — both the half that resulted in conviction and the half that resulted in acquittal — depended for their cogency upon the jury’s acceptance of FJ’s credibility and reliability. The respondent’s position must be that her credibility and reliability were sufficient to satisfy the jury beyond reasonable doubt of the relatively minor offending embraced by charges 2, 3, 6 and 7, yet insufficient to satisfy the jury as to the relatively serious offending on charges 4, 5 and 8. There does not to us, however, appear to be any logical or reasonable explanation supporting a divergent approach to the complainant’s credibility and reliability.
In so saying, we do not ignore the admonition in MFA to bear in mind that a verdict of not guilty on one or other charge does not necessarily signify a general lack of confidence in the complainant, or that the complainant has been disbelieved; and that factors that might make a jury cautious about reaching a conclusion beyond reasonable doubt in relation to aspects of the complainant’s evidence might include that she has shown some uncertainty or faulty recollection as to matters of detail, or otherwise has been shown to be more reliable about some parts of her evidence than about others.[27] But bearing those matters steadily in mind, we can see no satisfactory explanation for the ostensible inconsistency in the jury’s approach.
[27]See [10] above.
Quite apart from the apparent inconsistency between the verdicts, we consider that the verdicts of guilty are otherwise unsafe and unsatisfactory. In our view, the jury should, on all of the evidence, have entertained a reasonable doubt about the applicant’s guilt on the charges upon which he was convicted. It is necessary to examine the evidence on each charge in turn.
As previously discussed, charge 2 involved an allegation that the applicant had the complainant stand with one foot on the bath and the other on the toilet, while — by some unexplained mechanism — the applicant contrived to lick FJ’s vagina. Even acknowledging that aberrant sexual activity is often perpetrated in an unusual fashion, the method of the alleged offending described strikes us as being highly improbable. Additional to that general improbability, however, is SG’s evidence of the position of the toilet vis-à-vis the bath. If her evidence is correct — and there appears to us to be no sound reason to reject it — it would have been impossible for the offending conduct alleged to have been accomplished.
The respondent submitted that the jury were entitled to reject SG’s evidence as to the relative positions of the bath and toilet. As a matter of theory, so much is true. In order to dismiss SG’s evidence, however, there needed to be a proper basis for so doing. As far as we can see, however, there was none. SG was an adult, rather than a young child, at the relevant time, and for that reason alone her recollection might be expected to be the more reliable. Further, the prosecution did not seek to cross-examine her on this aspect of her evidence.[28] And it was not suggested that SG had a motive to be untruthful, or that for any other reason her evidence was unreliable or suspect. SG’s evidence was unchallenged, save that it conflicted with her daughter’s account. In light of SG’s evidence, a jury, acting reasonably, should have had a reasonable doubt about the indecent assault on charge 2 being capable of being accomplished in the manner alleged.
[28]See Evidence Act 2008, s 38,
Turning to charge 3, FJ’s account of the circumstances of that charge was, to say the very least, somewhat odd: ‘He took his hand and placed it on my vagina and [making a cupping motion] … I thought it was over my pants but it was definitely inside my pants and he played’. Notwithstanding her assertion that the touching was inside her pants — her original ‘thought’ that it was over her pants having apparently been discarded — the prosecution went to the jury on the basis that the touching was over the complainant’s pants. As the judge observed in his sentencing remarks:
[FJ] appeared to suggest in her evidence-in-chief that you touched her vagina on the inside of her clothing, however, the matter was ultimately put to the jury on the basis that you rubbed her vagina on the outside of her clothing. You will therefore be sentenced on that factual basis.
Further, FJ’s evidence with respect to the surrounding circumstances attending charge 3 was also, to say the least, odd. In her evidence she claimed that she saw the applicant drinking beer, but subsequently agreed that she had given evidence at the committal that she only knew that the applicant had been drinking because her mother told her so. (SG, it will be remembered, said that the applicant did not drink alcohol, making it very unlikely that she ever would have told FJ the applicant had been drinking.) FJ’s explanation for the change in her evidence does not inspire any confidence in the soundness of her memory: ‘‘Cause I’ve emptied my brain enough to allow new memories to come through. So I’m trying to be as honest as I can with what I’m remembering today’.
It is a novel (if not wholly absurd) proposition that a person can — as FJ claimed that she did — ‘empty’ his or her brain ‘to allow new memories to come through’. Although FJ’s claim that she emptied her brain was not explored by either counsel at trial, the vagaries of memory are well-known. Indeed in Longman,[29] a case concerned with allegations of what is now often called ‘historical’ sex offending, McHugh J made some pertinent observations about the fallibility of memory:
The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person's ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine …
[29]Longman v The Queen (1989) 168 CLR 79, 107–8.
Moreover, the evidence of FJ’s ‘distorted thought patterns’ does not inspire any faith in the soundness of her recollection. Thus, it will have been noted that FJ gave evidence that ‘although it was very confusing [to] put it all together’, by telling the truth ’the real memories started to come up properly’. (She also said that she ‘had a good counsellor helping [her] as well’.) Furthermore, the fact that FJ apparently thinks that she has five parts — one of the ‘five parts’ manifesting itself as a ‘blue person’, and another as ‘a little girl’ — and that the different parts ‘talk’ to her and give her ‘information’, is the source of a deal of disquiet about her thinking.
In this context, it is difficult to ignore the manner in which her complaints about the applicant appear to have arisen. SG gave evidence that at a Tarot card reading — FJ asserted that her mother was not present — the person reading the cards, PE, told the complainant that ‘in her past there was a dark or black haired man who had molested her’. That evidence was supported by LG, who gave evidence that FJ told her that during a Tarot reading by a friend, the friend could see in the cards that FJ ‘had been molested by a 50 year old man when she was five years old’, and ‘that when she was five years old a 50 year old man had made her suck his dick’. Significantly, when LG pointed out that it could not have been the applicant, because he was not in her life when she was aged five, FJ replied: ‘It doesn’t matter who did it, somebody has to pay for it’.
The prosecution did not seek to cross-examine either SG or LG on their evidence concerning the Tarot card reading and what FJ had said about it. Although, of course, the jury were told that they were entitled to accept or reject the evidence given by a witness, no satisfactory reason for not accepting SG’s and LG’s evidence on this topic has ever been suggested by the respondent (save it being pointed out that it conflicted with FJ’s account).[30] And it will be remembered that although she denied that her mother was present at the Tarot card reading, or that she had spoken to LG about it, FJ herself said that it was only after PE had gleaned from the cards that someone was scaring her that FJ nominated the applicant as that person.
[30]In her final address to the jury, the prosecutor referred to the evidence of FJ, PE, SG and LG on the topic — putting no arguments as to why the evidence of SG and LG should not be accepted — and simply summed up by saying:
So, members of the jury, make of it what you will. Once again, you have different versions of the same event, and it’s a matter for you to decide what you accept and what you reject.
Turning to charge 6, which was alleged to have occurred on MG’s and DG’s birthdays on 6 April 1984, we consider that the jury ought to have had a reasonable doubt about the applicant’s guilt. FJ, it will be remembered, alleged that the applicant had asked her to stand in front of the shed window while he masturbated. Had that evidence stood alone, it might have been concluded that, although implausible, FJ’s account was not so improbable that the jury must have had a reasonable doubt. But as we have indicated, that evidence did not stand alone. In cross-examination, FJ claimed that her mother saw her standing in front of the shed doing nothing (while the applicant masturbated), and chastised her for doing nothing. The importance of that evidence is, of course, that as SG said, from her position at the kitchen window, she could see part of the way into the shed — her evidence on this aspect was not impugned by the prosecution — rendering it highly unlikely that the alleged offending could have occurred in the manner alleged. Indeed, we consider that when SG’s evidence is properly taken into account, FJ’s version is so improbable that it was incapable of acceptance by the jury to the criminal standard.
Finally, we consider that the circumstances of the alleged offending on charge 7 were so unlikely, and FJ’s general unreliability was such, that the jury should also have had a reasonable doubt about the applicant’s guilt on that charge. We regard it to be wholly improbable that FJ, aged about 14 at the time, could have had sufficient presence of mind to engineer a situation whereby she arranged to have two other children, NJ and T, watch through the window while FJ ‘walked through the house to try and prove that this man was doing bad things’; and that, fortuitously, the applicant just happened to choose that moment to pin her to the floor and masturbate her.
Conclusion
For the foregoing reasons, the convictions on charges 2, 3, 6 and 7 cannot be permitted to stand.
We would grant leave to appeal against conviction; allow the appeal; set aside the convictions; and enter a judgment of acquittal on each charge.
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