Cooper (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0046

ANDREW COOPER (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of certain names.

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JUDGES:	PRIEST, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2023
DATE OF JUDGMENT:	3 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 67
JUDGMENT APPEALED FROM:	DPP v [Cooper] (Unreported, County Court of Victoria, Judge Meredith, 13 December 2021)

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CRIMINAL LAW – Conviction – Appeal – Four charges of sexual offending relating to three incidents against step-daughter – Jury convicted applicant on four charges – Whether trial judge wrongly rejected application to cross-examine complainant as to prior complaints about unwanted kissing – Whether trial judge wrongly admitted evidence of applicant’s ‘bad character’ – Whether verdicts unsafe and unsatisfactory – Leave to appeal refused.

Criminal Procedure Act 2009, ss 276 (1), 349; Jury Directions Act 2015, ss 52, 54D.

Perry v The Queen (1982) 150 CLR 580; M v The Queen (1994) 181 CLR 487; Melbourne v The Queen (1999) 198 CLR 1; R v Thomas [2006] VSCA 167; Pell v The Queen (2020) 268 CLR 123; Dansie v The Queen (2022) 403 ALR 221; Price (a pseudonym) v The Queen [2022] VSCA 169; Blake (a pseudonym) v The King [2023] VSCA 52 considered.

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Counsel
Applicant:		Mr PJ Smallwood
Respondent:		Ms EH Ruddle KC
Solicitors
Applicant:	Mapleston Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MCLEISH JA
KENNEDY JA:

On 13 December 2021, the applicant was found guilty of two charges of indecent assault,[2] one charge of incest,[3] and one charge of sexual assault[4] following a 10 day trial by jury in the County Court.
[2]Contrary to s 39 of the Crimes Act 1958, as amended by the Crimes Amendment (Rape) Act 2007.
[3]Contrary to s 44(2) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.
[4]Contrary to s 40(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.
The complainant (‘TJ’) was the step-daughter of the applicant and was between the ages of approximately 13 and 19 when the offending was alleged to have occurred. The applicant was between the ages of 57 and 63.
The four charges were related to three discrete incidents. TJ gave evidence about each of these incidents, as well as evidence of a broader context of other (uncharged) prolonged sexual offending. The applicant did not give evidence, but generally denied that the incidents occurred. He accepted that he engaged in physical play-fighting with TJ, but denied that this involved sexual acts. His counsel also emphasised that there was delay in complaint being made.
The applicant now effectively advances three proposed grounds of appeal: that the trial judge wrongly rejected his application to cross-examine TJ as to her prior complaints about unwanted kissing;[5] that the judge wrongly admitted evidence of his ‘bad character’; and that the verdicts are unsafe and unsatisfactory.
[5]Under s 342 of the Criminal Procedure Act 2009 (‘CPA’).
For the reasons that follow, we consider that the applicant’s complaints are without merit such that leave to appeal will be refused.

Overview

First incident

The first two charges arise from an occasion when the applicant took TJ to a portable toilet at a horse agistment property in Somerville. The applicant is alleged to have come up behind TJ, grabbed her, and pulled her pants down to touch her vagina, (charge 1 — indecent assault) before penetrating her vagina with his finger (charge 2 — incest). TJ’s evidence was that she started screaming and crying after this incident and the applicant said ‘Oh stop it, it’s not that bad’.
TJ said she did not disclose this incident to anyone at the time, stating she was too scared to because her mother was ‘mentally unwell’ and that she was scared of the applicant.

Second incident

TJ also gave evidence that on one occasion when she and the applicant were ‘play‑fighting’ in the kitchen in their home, the applicant grabbed her breasts and squeezed them (charge 3 — indecent assault). The play-fighting ended because the family needed potatoes for dinner and the applicant left the house to get some. After the applicant left, TJ told her mother that the applicant had been touching her on the crotch, but denied that there had been any penetration.

Third incident

The final offence was alleged to have occurred in TJ’s bedroom on 20 August 2016, when the applicant and TJ were on the ground and she had fought him off. When TJ tried to get back up, the applicant allegedly grabbed her, pinned her up against the wall, and sucked on her breast (charge 4 — sexual assault). TJ’s evidence was that the applicant also punched her in the arm and slapped her across the face when she began crying and screaming. She also gave evidence that she had a shower and nap and then attended horse races at Pakenham shortly after this incident occurred (she had a job as a ‘strapper’, looking after horses).
The three specific incidents occurred within a broader context of alleged extensive uncharged offending, wherein the applicant groped TJ’s breasts and groin area.
TJ attended Cranbourne Police Station with her mother (‘TK’) and maternal aunt on 25 August 2016 to report the offending, and made a formal statement on 29 August 2016. She also reported the offending to a co-worker, a male friend, as well as her biological father (‘TN’).
The key evidence for the prosecution was that of TJ. TJ’s friend and TJ’s maternal aunt also gave evidence, as well as the informant (who adduced a record of interview with the applicant). The pre-recorded evidence of TN was also played to the jury (given he had passed away) and a number of sworn statements were read into evidence.[6]
[6]Statements of Ms RT, Senior Constable Ashley Barton, and a horse trainer employer of TJ.
TJ’s mother was ultimately not called as she had provided two inconsistent statements to police.[7] While she made complaints about the applicant’s behaviour (including as to domestic violence) in her first statement, in her second statement she suggested that there was ‘no way’ the applicant had done the things TJ had accused him of. On day five of the trial, the prosecutor advised the judge that she did not intend to call TK as she was not a witness of truth and the only purpose the prosecution would have in calling her would be to cross-examine her. Defence counsel announced that he did not seek to cross-examine TK and would not make any criticism about the fact that she was not called.
[7]TK provided her first statement on 25 August 2016 and second statement on 2 November 2016.
The applicant did not lead any evidence, but made an extensive challenge to the credit of TJ. Particular criticism was made of her denial that penetration had occurred when she first made complaint to her mother (after the second incident).

Proposed grounds

The applicant originally sought leave to appeal against conviction on the following six proposed grounds of appeal:
Ground 1. The trial judge erred in his rejection of the s 342 Criminal Procedure Act application and applied the wrong test.
Ground 2. The trial judge gave inadequate directions to the jury as to the evidence of complaint and evidence of distress.
Ground 3. The trial miscarried by reason of the admission into evidence of bad character evidence.
Ground 4. The trial miscarried by reason of the admission into evidence of inadmissible opinion evidence concerning the mental health of the complainant’s mother.
Ground 5. The verdicts on charges 1, 2, 3 and 4 are unsafe and unsatisfactory.
Ground 6. An aggregate of errors has resulted in a miscarriage of justice.
However, counsel for the applicant abandoned proposed ground 2 at the hearing of the application. He also abandoned proposed ground 4 as an independent ‘standalone’ ground, although he made submissions about it as a ‘particular’ of proposed ground 3.

Proposed ground 1 — wrongful rejection of s 342 application

Prior to empanelment of the jury, defence counsel made application for leave to cross‑examine TJ under s 342 of the CPA, which the judge refused. Section 342 prohibits cross-examination of a complainant as to their ‘sexual activities’ (whether consensual or non-consensual) without the leave of the court.
The genesis of the application was two statements attributed to TJ in her mother’s second statement to police that TJ had accused two individuals of ‘kissing her’.
In relation to the first occasion, TK explained that the applicant, TJ and TK had moved to live with her sister in 2010 after the failure of a family business. She said that TJ was living in a spare room in the house, while she and the applicant moved into a shed located on the property. She further stated:[8]
There was a lot of fighting between my sister and myself at the time because [TJ] was accusing my sisters [sic] husband, [‘GH’] of coming into her room and tucking her in and kissing her good night. I thought that was a bit weird. I confronted [her sister] about it and we had a fight about it. [TJ] moved into the shed with [the applicant] and I for a short time before we found somewhere else to live.
[8]Emphasis added.
Secondly, TK stated that TJ had accused an acquaintance (‘Ms RT’) of ‘kissing her’. Ms RT owned a property which was used for the agistment of horses owned by the family. Counsel for the defence accepted that this complaint was made later in 2016, after the date of TJ’s formal statement to the police. He also accepted that the merits of the application were ‘not as strong’ in respect of Ms RT, and the judge considered that this aspect of his application was effectively abandoned.
TJ’s father, TN, also made reference to these complaints in his pre-recorded evidence.
The written application under s 342 alleged that the relevant evidence had substantial relevance to the following ‘facts in issue’: (a) whether the jury accepts any explanation for delay in complaint; and (b) the credibility of the complainant.
In response to a question from the judge as to what the relevance of this evidence was, defence counsel stated:
The relevance is [TJ] shows in those two complaints – well in the ones about GH – a capacity to complain about someone who’s – the capacity to complain to her mother and about someone who’s close to her mother. So if there is an explanation for the delay from the witness in cross-examination that I didn’t complain because it was my mother’s partner and it just got to a point where it got too much and I had to complain, this would tend to undermine that explanation.
In making his ruling, the judge correctly set out the terms of s 349 (which identifies the circumstances relevant to whether leave should be granted under s 342). He then stated:
In my view, the kissing as opposed to the subject matter of this trial are very different forms of conduct and very different considerations may well apply as to whether the complainant would have broached these two very different types of sexual activity with her mother. Similarly, the complainant’s relationship with her stepfather and her relationship with GH and Ms RT are very different matters.
It follows that I am not satisfied that this proposed questioning has substantial relevance to a fact in issue and I would not grant leave nor in my view would it substantially affect the credibility of the complainant if it were permitted. If I am wrong about the applicability of s 342, then I would exclude this evidence pursuant to s 135 of the Evidence Act. When I say if I am wrong about 342 if for some reason it doesn't come within the (indistinct) of that provision.
In my view it is likely to divert the jury from the proper consideration of the issues in this trial and might well lead to a trial within a trial of precisely what the conduct was, why the complainant did or did not complain about it, whether these other complaints were timely and so on. Accordingly, I would exclude this evidence and it follows that the pre-recorded evidence of the father will have to be edited to remove references to the earlier questioning.
In his written case, the applicant submitted that the judge made the above ruling in error, for two reasons. First, in circumstances where the issue of delay in complaint was a live issue in the trial, these prior incidents revealed TJ’s capacity to complain to her mother in relation to ‘unwanted sexual advances’, namely kissing, and were thus relevant to her credit and reliability. Secondly, the applicant submitted that the judge did not apply the correct test under s 346(2)(c) of the CPA.
In oral submissions, however, counsel did not pursue the allegation that the judge applied an incorrect test.[9] Counsel nevertheless maintained that the evidence was plainly relevant to a ‘fact in issue’ as required by s 349, namely, whether the offending occurred. Counsel also accepted that there was a ‘qualitative difference’ between the evidence insofar as it related to Ms RT, as compared with GH, and that it was ‘much harder’ to maintain reliance on the application concerning Ms RT.

Analysis

[9]This was an appropriate position given that s 346(2)(c) is concerned with the contents of the application for leave, rather than its determination (which is the subject of s 349).

By virtue of s 339 of the CPA, Division 2, headed ‘Evidence concerning complainant,’ applies to all complainants in a criminal proceeding relating to a charge for a sexual offence.
Sections 343 and 352 impose limitations on the admissibility of ‘sexual history evidence’, which is defined in s 340. However, s 342 does not refer to ‘sexual history evidence’, but rather provides that a complainant must not be cross-examined, and the court must not admit evidence, as to a complainant’s ‘sexual activities’ (whether consensual or non-consensual), without the leave of the court. The expression ‘sexual activities’ is not defined.
As indicated already, s 349 provides for the determination of an application under s 342 as follows:
349 Determination of application for leave during summary hearing, committal proceeding or trial
In the course of a summary hearing, committal proceeding or trial, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to—
(a)whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and
(b)the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and
(c)the need to respect the complainant’s personal dignity and privacy; and
(d)the right of the accused to fully answer and defend the charge.
It may be observed that s 349 provides for a two-step process involving satisfaction: first, that the evidence has ‘substantial relevance to a fact in issue’; secondly, that it is ‘in the interests of justice’ to grant the application, having regard to the matters specified in sub-paragraphs (a)–(d).
Although ‘fact in issue’ is not defined, the facts in issue will be those that bear on the existence of an element of the offence (or offences), and behind those there will be facts relevant to those facts in issue.[10] Moreover, the presence of the word ‘substantial’ in the expression ‘substantial relevance’ indicates that the cross-examination, or evidence, concerning the complainant’s sexual activities, must have the capacity to substantially affect the assessment of the probability of the existence of the relevant fact, or facts, in issue.[11]
[10]Price (a pseudonym) v The Queen [2022] VSCA 169, [26] (Priest, Kyrou and Macaulay JJA).
[11]Ibid, [27].
To the extent the evidence may also be characterised as ‘sexual history evidence’, s 352 further provides that such evidence: (a) is not to be regarded as ‘having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition’; and (b) is not to be regarded as ‘being proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant’.
In this case, the judge was not satisfied that the evidence had ‘substantial relevance’, such that it was unnecessary to also evaluate the ‘interests of justice’ criterion under s 349.
In our view, the judge’s decision was clearly correct.
Although the case for relevance was put in various ways, the evidence was only capable of being relevant to whether the acts constituting each offence really occurred (the alleged ‘fact in issue’) if it was appropriate to make a comparison between TJ’s actions in making timely complaint about unwanted kissing, and the fact that she delayed her complaint in relation to the acts the subject of the charges.
We consider that there is no basis for comparison, for two reasons. First, the act of ‘unwanted kissing’ is of a completely different character to the acts of highly sexualised conduct the subject of the charges. Secondly, the relationships involved are starkly different. While GH was an uncle by marriage with whom the family lived on a temporary basis, and Ms RT was a mere acquaintance, the applicant was the long-term de facto spouse of TJ’s mother. Although TJ might have felt relatively comfortable complaining about the unwanted kissing of a maternal uncle or an acquaintance, she is likely to have felt very differently about complaining about the serious sexual abuse by her mother’s spouse, with whom she lived on a long term basis.
In the light of the very different conduct and relationships involved, the complaints of unwanted kissing could therefore shed no real light on whether the acts the subject of the charges occurred absent timely complaint. Although the ‘relevance’ formulation in the Evidence Act2008 is wide,[12] we therefore do not consider that the evidence in question as to ‘sexual activity’ could rationally have affected the assessment of whether the offending in this case really occurred.
[12]See Evidence Act2008, s 55 which provides that evidence is relevant if it is evidence that, if accepted, ‘could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’.
In such circumstances the potential cross-examination was not even relevant, and certainly not ‘substantially relevant’ pursuant to s 349, and proposed ground 1 cannot succeed.
There may also be some doubt as to whether s 349 was really engaged at all. Although much would depend on the context in which the alleged ‘kiss goodnight’ took place, a kiss does not necessarily of itself amount to ‘sexual activity’. The judge effectively acknowledged this in determining that, in the alternative, he would have excluded the evidence under s 135 of the Evidence Act (if s 349 was not engaged).
Even if the prohibition in s 349 was not engaged, however, this does not assist the applicant. First, ground 1, as framed, is premised on the application of s 349, consistent with the approach before the judge. Secondly, for reasons given already, the evidence was not admissible because it was not relevant. Thirdly, the judge ruled that, even if s 349 was not engaged, the evidence would be excluded under s 135. The applicant has not challenged this decision, which was clearly correct. Thus, even if the evidence had any probative value at all, it was clearly outweighed by the danger that the evidence might result in undue waste of time and/or confusion. Finally, even if there was an error or irregularity by reason of the refusal to admit the evidence, no substantial miscarriage of justice has been caused given the evidence was of marginal relevance, at best.[13]
[13]CPA, s 276(1)(b).

Proposed ground 1 is unsustainable.

Proposed ground 3 — wrongful receipt of ‘bad character’ evidence

In written submissions the applicant made complaint about the admission of evidence which was said to unfairly prejudice him and ‘blacken’ the impression the jury would have of him. However, in oral submissions counsel abandoned reliance on the extracts cited in writing and substituted a series of references which were said to demonstrate that irrelevant and prejudicial evidence had been adduced. This was notwithstanding that no objection had been taken at trial to the receipt of this evidence, nor was any curative direction sought to manage any error by reason of the admission of the evidence.
Counsel also submitted that, although it was correct that TJ’s views of her mother’s mental health were relevant to explain her delay in complaint, the evidence went ‘further’ and extended to an assertion of fact (that her mother had poor mental health). Again, however, counsel accepted that this did not constitute a ground in its own right; was not the subject of objection; and that counsel for the defence himself cross‑examined on the topic of TJ’s mother’s mental health.
We have considered each of the various transcript references cited, which included three major categories as follows:
•TJ’s evidence of what the applicant had said to her the morning after she had made complaint to her mother in relation to the second incident (‘see what you’ve done to your mother’) and how this made her feel (that he could control her and had ‘gotten away with it’);
•TJ’s evidence that, although she and the applicant played and wrestled, he had a ‘very bad side’, was ‘quite abusive’ to her and her mother, and he used to ‘hit’ and ‘yell’ at her; and
•evidence related to the applicant’s conduct when TJ’s male friend picked her up, prior to her attendance to make a complaint at the police station (which was on 25 August 2016). According to the evidence of TJ, the applicant was angry and abusive and pushed her into the fridge. Both she and her friend said that the applicant also called TJ names (including that she was a ‘lesbian’ and a ‘fat cow’). TJ also gave evidence that her mother rang her shortly afterwards and said the applicant had said to her that TJ was a ‘cunt’ and he was going to ‘bash her head in’.
There is no merit in proposed ground 3.
It is true that evidence of the accused’s ‘bad character’ is admitted only in exceptional circumstances because it is likely to be unfairly prejudicial.[14] There was also no suggestion that any exception applied in this case.[15]
[14]Perry v The Queen (1982) 150 CLR 580, 585 (Gibbs CJ); [1982] HCA 75; R v Thomas [2006] VSCA 167, [16]–[17] (Neave JA, Maxwell P agreeing at [1], Mandie AJA agreeing at [55]).
[15]Section 110 of the Evidence Act2008 sets out some of the exceptions to the principle that evidence of bad character is normally inadmissible. Under ss 110(2)–(3), if evidence has been adduced to prove an accused’s good character (either generally or in a particular respect), a co-accused or the prosecution may respond by leading evidence to prove that the accused is not a person of good character (either generally or in that respect).
Although there is no statutory definition, ‘character evidence’ is concerned with a person’s inherent moral qualities or disposition,[16] and it has been said to embody the ‘permanent and unchanging pattern of the nature of the individual concerned’.[17] Thus, evidence of a person’s reputation is generally accepted as proof of a person’s ‘character’.
[16]Melbourne v The Queen (1999) 198 CLR 1, 15 [33] (McHugh J); [1999] HCA 32.
[17]Ibid 40 [105] (Kirby J) (in dissent, but his description of character evidence remains relevant).
In this case, however, the evidence cited was concerned with the way the applicant related to, and treated, TJ as an individual in a domestic setting. It did not purport to portray a more general disposition, or pattern, applicable outside a specific personal relationship.
We are therefore of the view that, consistent with the stance of defence counsel at trial (in not objecting), the evidence cited was not ‘character evidence’, such that proposed ground 3 must fail on this basis alone.

We also consider that the evidence was relevant in any event.
First, the evidence relating to the second incident was relevant given that the applicant sought to make much of the delay in complaint. The fact that TJ felt controlled and that the applicant had ‘gotten away with it’ could explain why she did not continue to complain (notwithstanding that the uncharged acts later continued).
Secondly, the fact that the applicant had a ‘bad side’, although he did sometimes play‑fight, was directly relevant to the defence that the applicant only ever engaged in innocent play-fighting. We also do not accept (as counsel submitted) that the evidence that the applicant was ‘abusive’ to TJ and her mother somehow constituted evidence of the mother’s actual mental state.
Finally, the applicant’s abusive behaviour in August 2016 was context evidence relevant to the circumstances in which TJ came to make complaint to the police. Although the hearsay evidence of TJ’s mother was objectionable, counsel expressly disavowed an objection on this basis. Any prejudicial value of this hearsay evidence was also minimal. Given there was already direct evidence of the applicant’s abusive reactions, there was no substantial miscarriage of justice as a result of the receipt of the hearsay evidence.[18]
[18]CPA, s 276(1)(b).

Proposed ground 5 — unsafe and unsatisfactory verdicts

In supporting this proposed ground, the applicant submitted that:
•there was clear objective evidence that no horse races took place at Pakenham on 20 August 2016, as TJ claimed in relation to the third incident;
•there were inconsistencies and/or variations in TJ’s account as to the circumstances in which the alleged sexual conduct took place, in particular:
(a)although TJ claimed to have been abused ‘every day’ (in respect of uncharged acts in the home), she ultimately accepted that this was untrue;
(b)TJ did not initially give evidence regarding the penetration said to be the subject of the first incident;
(c)TJ denied that there had been any penetration in making her first complaint to her mother after the second incident; and
(d)TJ gave inconsistent and contradictory evidence as to whether her underpants were still on, or pulled down, during the first incident.
•TJ’s evidence that she engaged in play-fighting with the applicant meant that a reasonable jury could not have excluded a reasonable hypothesis consistent with innocence in respect of the second incident.
In oral submissions, counsel placed much emphasis on the absence of clear objective evidence of a race meeting occurring on 20 August 2016 at Pakenham (as TJ alleged). He contended that TJ’s evidence conflicted with clear objective evidence, such that the case was analogous to Pell v The Queen.[19]
[19]Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (‘Pell’).
Counsel also submitted that the quality of the applicant’s evidence was such that the jury must have had a doubt. In particular he submitted that, having particular regard to the applicant’s denials in the record of interview; the applicant’s forensic disadvantage; TJ’s prior inconsistent statements; and the ‘every day lie’, the verdict was unsafe.
Principles
Section 276(1)(a) of the CPA provides that the Court of Appeal must allow an appeal against conviction if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
Section 276(1)(a) requires this Court to ask itself whether we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt upon the whole of the evidence that the applicant was guilty of the charges.[20] In M v The Queen, the majority observed:
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.[21]
[20]M v The Queen (1994) 181 CLR 487, 493–5 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’).
[21]Ibid, 494–5 (citations omitted).
In Pell, the High Court endorsed the approach in M, and said:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[22]

No races on 20 August 2016

[22]Pell (2020) 268 CLR 123, 145 [39] (The Court) (citations omitted). The approach in M was also recently endorsed by the High Court in Dansie v The Queen (2022) 403 ALR 221; [2022] HCA 25.

The third incident constituted the last occasion on which the applicant was said to have interfered with TJ, prior to her attendance at the police station on 25 August 2016. In examination-in-chief, TJ gave the following evidence about this incident:
What was the last occasion Friday - you making that statement?---I remember a specific - when I was in my bedroom and I remember this occasion because it was the first time that I had really had fought him off and I had him pinned to the ground and I said, ‘Had you had enough?’ and he was tired and he couldn’t do anything. I then got - I then went to get up. He then grabbed me and pinned me against the wall, and he sucked on my breast. I then went and had a shower, and I bawled my eyes out. But I can’t remember what the situation was before that. I just remember being in my bedroom and I remember it because I had [fought] him off and managed to pin him to the ground.
TJ was again taken to this incident later in her examination-in-chief and was unable to recall precisely when it occurred, only that it ‘wasn’t far’ before her attendance at the police station. However, after being permitted to refresh her memory from her statement (made on 29 August 2016) she said that the offence occurred on ‘20 August’ in 2016. She also said that, after the applicant sucked her breast, he also punched her in the arm and slapped her in the face, and she cried and told him to stop. She then had a shower and a sleep prior to attending the races at Pakenham.
There was objective evidence, however, of racing schedules which recorded races at Pakenham in 2016. Those records indicated that there were no races held at Pakenham on 20 August (which was a Saturday), but that there were races on Tuesday, 16 August, Tuesday, 23 August, Thursday, 25 August and Friday, 5 August.
In cross-examination, defence counsel put to TJ that there were no races on Saturday 20 August. She initially replied: ‘[t]here would have been, yes.’ However, when counsel subsequently returned to the topic, the following exchange occurred:
I’m putting to you that there were no races at the Pakenham Race Club on Saturday 20 August 2016. Do you accept that or do you reject it?---There might not have been on the 20th, but it was definitely Pakenham races.
So you accept the possibility that there may have been no races on 20 August 2016, correct?---It’s a possibility, yes.
And that when you made a statement nine days after 20 August 2016, you told the police that you had been, an hour before - sorry, ‘When I got out of the shower, I had a sleep ‘cause I had an hour before racing’, correct?---Yes.
And you were talking there about going to the Pakenham Racing Club because you’ve said that today, correct?---Yes.
And on 29 August 2016, you knew there were no races at the Pakenham Racing Club on Saturday 20 August 2016. That’s correct, isn’t it?---No.
And you were just seeking to add colour and detail and a lie to the police to make this allegation somehow more available, to add in details that are untrue?-‑-No, I went to the races regularly on a daily basis. I was [the] main strapper.
There were no races on Saturday 20 August 2016, and if you’re making a statement nine days after that, you knew that was the case that there weren’t any at Pakenham Racing Club, correct?---No.[23]
[23]Emphasis added.
In re-examination, TJ gave the following evidence:
So the 20 August 2016 incident; that incident you were just talking about - you were being asked about by my learned friend, you had a shower, a nap, then you had an hour before going to the races?---Yes.
What’s your memory of what you did after you had your shower on that day?-‑-Ah, I know I had to go to bed because I had to go to the races. I remember that, because otherwise I would be very, very tired.
And then after your nap?---Then I remember getting dressed to go to the races and get myself ready.
Which races were they?---It was Pakenham races.
And what is your memory of - once you got dressed to go to the races at Pakenham, what’s your memory on that day?---I don’t remember the trip there. I remember the - I remember Pakenham races because we were just around the corner, ah, of where you meet someone at the front of the gate. We were just hidden around the corner of that, and we never used to be there. That’s why I remember it so vividly.
TJ’s evidence that the third incident occurred on 20 August was clearly incorrect if, as she claimed, she immediately thereafter attended a racing day at Pakenham. It is also true that TJ appears to have nominated the date of 20 August only nine days after the fourth incident occurred (when giving her statement on 29 August). The objective records as to racing days may therefore suggest that we should experience a doubt about the applicant’s guilt in respect of charge 4. If this is the case, the question might then become whether any potential doubt we experience is capable of being resolved by the jury’s advantage in seeing and hearing the evidence.
It is important to bear in mind, however, a number of other factors in considering the evidence relating to charge 4.
First, the date is not an element of the offence, and the applicant herself ultimately accepted that the offending may not have occurred on 20 August 2016. The fact that she maintained that the offending still occurred on a day that there was racing at Pakenham suggests that she may have simply mistaken the date of the offending, rather than whether the offending itself took place.
Secondly, the evidence was that racing took place at Pakenham on dates very close in time to the date nominated (including on 16 and 23 August). This was therefore not a case where there were no races for a significant period of time leading up to 29 August (when TJ’s statement was taken). To use an extreme example, if there was no record of races occurring in 2016 at all, her evidence about the fourth incident might have been seriously questionable.
Thirdly, it is significant that TJ was attending the races regularly at all kinds of hours in the course of her employment as a strapper. Thus, her evidence was that some stables started operation at 3:30 am. In this context, the date of any individual attendance might be easily misstated.
In the light of all the evidence, then, we are not satisfied that the jury ought to have entertained a reasonable doubt about charge 4, despite the independent evidence about racing days. In circumstances where (in accordance with Pell) we are to proceed on the assumption that the jury assessed TJ’s evidence as credible and reliable, it was well open for the jury to accept TJ’s account on the basis that she simply made a mistake about the date of the offending, rather than the offending itself.

Other inconsistencies and variations in TJ’s account

Before dealing with each of the other matters the subject of complaint, there are a number of principles applicable in assessing inconsistencies in witnesses’ accounts, including in trials concerning sexual offences. In this regard, we have been greatly assisted by the distillation of principles in the recent decision of this court in Blake (a pseudonym) v The King.[24]
[24]Blake (a pseudonym) v The King [2023] VSCA 52, [77]–[78], [80] (Beach, T Forrest and Kaye JJA).
First, not every discrepancy, inadequacy or inconsistency will necessitate a conclusion that a guilty verdict must be set aside. The issue will always be whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
Secondly, insofar as complaint is made that there was a failure to complain about penetration when TJ first complained to her mother, experience shows that people may react differently to sexual offences. While some people may complain immediately to the first person they see, others may not complain for some time (or ever), and others may delay in making a complaint. There may be also good reason for a person’s failure to complain or delay in complaining. Section 52 of the Jury Directions Act 2015 required the judge to direct the jury in these terms (as his Honour rightly did in this case).
Thirdly, insofar as differences were identified within TJ’s evidence, it is well‑recognised that people describing sexual offending may not describe a sexual offence in the same way on each occasion they are asked questions about it, a proposition which finds recognition in s 54D(2)(c) of the Jury Directions Act (which was also the subject of a direction in this case).
In the light of these principles, we turn to the specific complaints raised in this application.

‘Every day’ evidence

In examination-in-chief, TJ gave evidence about the frequency of the uncharged acts of sexual abuse which occurred in the home. Her evidence was that the applicant engaged in sexual touching in the home ‘once to twice a day, every day’.
However, in cross-examination, TJ agreed that it was not true that the sexual touching occurred every day. Her explanation was that it ‘felt like every single day’ because she ‘worked with him’ and ‘lived with him.’ In her words: ‘I’m going [to] see this every day because it’s part of my life.’ She said that sometimes it was not every day, because sometimes it would be on the weekend and her mother would be home.
It is true that there was an inconsistency about the frequency of the uncharged acts. However, we do not consider that this inconsistency was of such a character as to require the jury to have entertained a doubt. More particularly, in circumstances where TJ provided a cogent explanation for the inconsistency, it was well open for the jury to accept that explanation.

Initial omission of reference to penetration

When TJ initially gave evidence about incident one, she did not expressly give evidence about penetration. Rather her evidence was as follows:
You asked him where [the toilets] were, what happened from there?---So I asked him where they were. We - I started following him around to, to the corner of the, of the containers. He then grabbed me. He, he grabbed his hand and he pulled my pants down a little bit and put his fingers onto my vagina.
How long did this take?---It, it wouldn’t have been very long at all, probably not even a minute.
What did you - where were you facing when he did this?---I was facing the shipping container.
And where was [the applicant] when this occurred?---He was behind me.
What did you do?---I started crying and screaming.
Are you able to give an approximate age, how old you were at this time?---Um, I would’ve been in my early teens but I, I’m sorry, I can’t give you a, a exact age.
You mentioned - you said - you started - I’m sorry. I asked the question what you did when this happened?---Yeah. What I did, yes. So I, I started screaming and crying.
What did [the applicant] do, [the applicant] do?---He, he stopped and told me, ‘oh stop it, it’s not that bad’.
Later, a discussion between counsel and the judge ensued, in which it became clear that the prosecutor believed that he had heard TJ give evidence of a penetration, or at least expected to hear such evidence, but had been focused on his next question.
The prosecutor subsequently led the following evidence from TJ:
I think we were up to the point where you - I took you back to that very first incident the portaloo?---Yes.
Your evidence was, you [sic] pulled your pants down a little bit, put his fingers onto your vagina. Is that correct? That was your evidence earlier?---Yes.
Now, I’d like you to clarify where on your vagina the fingers were?---They started on the outside but he did put his fingers inside my vagina.
How long were they on the outside for - outside of your vagina for?---Maybe a couple of seconds.
And what were they doing? They just stayed there or moving? Can you describe what you were feeling?---They were moving.
Can you - for a couple of seconds I think it was your evidence. Is that right?---Yes. Yes. Yes.
Are you able to say - was it one finger or two fingers or three or more that were outside on your vagina moving?---One.
What are you doing at this point?---Squirming and screaming and crying.
So, squirming, screaming and crying?---Yes.
Where is [the applicant] at this point?---Behind me.
TJ was subsequently asked about whether her underwear was on or off when the applicant’s finger was moving (she agreed that underwear was on the whole time) and was asked what the applicant then did, to which she responded:
He then put his finger inside my vagina and moved his finger around. That’s when I started crying and squirming even more. He then stopped because I kept squirming and screaming and saying, ‘Oh, stop it. It’s not that bad’.
It is apparent that the applicant did not give evidence as to penetration in her initial account of the first incident. As we have earlier explained, however, people describing sexual offending may not describe a sexual offence in the same way on each occasion they are asked questions about it. In this particular case, it also appeared that the prosecutor had erred in failing to ask questions in the first instance to clarify, and obtain appropriate details about, TJ’s account.
In the result, TJ gave unequivocal evidence of digital penetration, and we consider that it was well open for the jury to accept this evidence, despite any initial omission.

Initial denial of penetration in making complaint

TJ’s evidence was that she did not tell anyone about the first incident because her mother was mentally unwell and she was scared of the applicant. However, she said that she did complain to her mother in relation to the second incident immediately afterwards (when the applicant went down the road to get potatoes). Her evidence was that she told her mother that ‘he [the applicant] has been touching me.’ She was then asked about her mother’s reaction and she said: ‘She asked me where he’s been touching me and I told her on my crotch and she said, “has he been inside you” and I said, “no”.’
TJ was also asked about whether she gave her mother much detail when she made her disclosure. She said she did not give very much detail at all ‘[b]ecause I was scared. I was scared to tell her’. Further, she said that she was scared both for herself and her mother.
TJ also gave evidence that her disclosure led to a discussion between her mother and the applicant (behind a closed bedroom door), after which the applicant apologised to her. She also gave evidence as to how her mother was in the month after she complained and said that: ‘[s]he went into a mental breakdown and she was vomiting in the toilet. She wasn’t eating, and I just – I just started wishing that I never told her in the first place.’
In cross-examination, TJ admitted that she lied to her mother about the applicant (not) having ‘been inside’ her.
The applicant therefore did not tell her mother about the penetration when making her first complaint. As already highlighted, however, there may be good reasons for such a delay. In this case, TJ proffered a reason, namely, that she was scared for both herself and her mother. It was well open for the jury to accept this reason in circumstances where TJ also gave evidence of sustained and prolonged physical abuse.

Inconsistencies concerning underwear

At various times in examination-in-chief, TJ accepted that her underwear remained on the whole time. However, in cross-examination, she was taken to her statement to police of 29 August 2016, wherein she had stated that her underwear was down. She ultimately accepted that she could not remember whether her underwear was up or down, saying it was ‘so long ago’.
The evidence of TJ was internally inconsistent in respect of her underwear. Given the effluxion of time, however, and the fact that people may not remember all the particulars of a sexual encounter, we are not satisfied that the inconsistency about this detail meant that TJ’s account was so inherently implausible that the jury ought to have entertained a reasonable doubt.

Evidence about play-fighting (charge 3)

In respect of charge 3, the applicant submitted that, given TJ gave evidence that she and the applicant did engage in play-fighting, a properly instructed jury, acting reasonably could not have excluded a reasonable hypothesis consistent with innocence.
However, this submission ignores the fact that, although there was play-fighting, TJ also gave evidence that there was a ‘bad side’ to this activity. She also expressly gave evidence that if her mother was not in the room, or could not be seen, then the applicant would sometimes touch her sexually ‘on the boobs or the crotch or [her] arse’.
In respect of the second incident (the subject of charge 3), TJ also gave evidence that the applicant ‘grabbed [her] boobs’. She then made a complaint which led to the applicant apologising for his behaviour, which the jury was directed they could treat as an admission. In re-examination, TJ also described this incident as ‘purposeful, he meant to do it.’ Her evidence was that he put his hands ‘directly onto [her] boobs’, groping, fondling or squeezing them with ‘[b]oth hands on each breast.’
In the light of this evidence of intentional sexual behaviour, it was well open for the jury to have excluded the hypothesis that the second incident simply involved a play‑fight.

Summary

While there were some discrepancies and inconsistencies in TJ’s evidence, we are not persuaded that any one of them suggests that her account was inherently implausible such as to require the jury to have entertained a reasonable doubt about guilt. As explained already, any individual discrepancy or inadequacy will also not necessarily be decisive. The issue will always be whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
Having considered the whole of the evidence, we consider that it was well open for the jury to be so satisfied notwithstanding the discrepancies cited. TJ generally provided a plausible, cohesive, account, as well as cogent explanations for relevant inconsistencies. With the exception of the third incident, there was also no other unchallenged evidence which called TJ’s account into question.[25]
[25]Cf Pell (2020) 268 CLR 123, in particular 164–5, [118]–[119] (The Court).
Insofar as the third incident (charge 4) is concerned, for reasons given already, it was open for the jury to treat TJ’s error as solely relating to the date of the offence, particularly given there was unchallenged evidence that TJ regularly attended races at Pakenham, and that races took place on dates very close in time to the date nominated.
Proposed ground 5 is therefore unsustainable.

Proposed ground 6 — aggregate of errors

Given that the applicant has failed to substantiate any error, there can be no ‘aggregate of errors’ and proposed ground 6 must also fail.

Conclusion

For the reasons given, leave to appeal will be refused.

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[2023] VSCA 67

3 April 2023