Danny (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0156

CARL DANNY (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	KYROU, KAYE JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2020
DATE OF JUDGMENT:	7 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 8

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted on three counts of committing an indecent act with a child under 16 years and one count of attempting to commit an indecent act with a child under 16 years – Two child complainants – Whether verdicts unreasonable due to inconsistencies in and implausibility of complainants’ accounts – No material inconsistencies – Verdicts not unreasonable – Whether substantial miscarriage of justice due to failure of trial judge to give unreliability warning to jury – No error in failing to give unreliability warning – Leave to appeal granted – Appeal dismissed – Young v The Queen [2015] VSCA 265; Hudson (a pseudonym) v The Queen [2017] VSCA 122 and Wade (a pseudonym) v The Queen [2019] VSCA 168 considered; Jury Directions Act 2015 ss 12, 14, 31 and 32; Evidence Act 2008 s 165.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J O’Connor	Emma Turnbull Lawyers
For the Respondent	Mr P Bourke	Ms A Hogan, Acting Solicitor for Public Prosecutions

KYROU JA

KAYE JA
CROUCHER AJA:

The applicant was charged on indictment with four counts of committing an indecent act with a child under 16 years of age (charges 1, 2, 3 and 5) and one count of attempting to commit an indecent act with a child under 16 years of age (charge 4). After a trial in the County Court, he was convicted on charges 2, 3, 4 and 5. The jury was unable to reach a verdict on charge 1. The applicant was sentenced to a total effective term of two years’ imprisonment with a non-parole period of sixteen months.

The applicant seeks leave to appeal against his convictions on two grounds, namely:

1.The verdicts of the jury on charges 2-5 are unreasonable or cannot be supported having regard to the evidence, pursuant to s 276(1)(a) of the Criminal Procedure Act 2009.
2.A substantial miscarriage of justice occurred due to the failure of the trial judge to direct the jury in accordance with s 32 of the Jury Directions Act 2015.

Background and circumstances of offences

The offences were alleged to have been committed between July 2015 and 24 June 2016. The two complainants were step-sisters. The first complainant, CBH,[2] was born in April 2005, and was aged between ten and eleven years at the time of the offending. The second complainant, BLS, was born in August 2008, and was seven years of age at the time of the offending. They lived with their mother NS, BLS’ father LS, and their five year old twin brothers, in Sebastopol.
[2]To ensure that there is no possibility of identification, this judgment has been anonymised by the use of initials in place of the name of the complainants and other witnesses.

The applicant was 34 to 35 years of age at the time of the offending. He was a family friend of the parents of the two complainants. On the prosecution case, the applicant was a regular visitor to the home of the complainants, and the complainants and their family regularly visited him, his partner and daughter, in their home in Mount Pleasant. It was in the context of those visits that the offences were alleged to have occurred. The complainant, in respect of the offences that were the subject of charges 1 and 2, was CBH. The complainant, in respect of the offences that were the subject of charges 3, 4 and 5, was BLS.

The offence, that was the subject of charge 1 (on which the jury was unable to reach a verdict), was alleged to have occurred between 1 July 2015 and 25 December 2015 in the lounge room of the complainants’ family home. On that occasion, the applicant was engaging in wrestling with CBH and her brothers. In the course of doing so, he was alleged to have taken hold of CBH, and put his hand down the front of her shorts, touching her vagina over her knickers.

The offence, that was the subject of charge 2, was alleged to have occurred between 1 February 2016 and 25 April 2016 at the complainants’ home. The applicant had been play wrestling with NS, CBH, BLS and the twin boys. NS’ telephone rang and she left the room. The applicant then ‘caught’ CBH and sat her on his lap. He rubbed her vagina area with his fingers underneath her underwear, and BLS then pulled CBH away.

The next incident (charge 3) was alleged to have occurred between 1 December 2015 and 31 December 2015, when BLS and her family visited the applicant’s home in Mount Pleasant. On that occasion, BLS was playing in a shed with the applicant’s daughter. At one point, BLS sat on the applicant’s lap facing away from him. The applicant turned her around, put his hand in her underwear and rubbed her vagina. At the time, NS was in the shed, but the applicant had turned BLS to a position so that NS could not see what had occurred. The applicant stopped touching BLS when LS walked into the shed.

Charge 4 was alleged to have occurred in the lounge room in the complainants’ home between 25 December 2015 and 24 June 2016. The applicant was sitting on a couch and BLS sat on his lap while watching television. The applicant attempted to rub BLS’ vagina, but she managed to prevent him from doing so by putting her hands across her crotch. The applicant’s attempt to touch BLS ended when her twin brothers came into the room and started wrestling with him.

Charge 5 was alleged to have occurred in the complainants’ home between 25 December 2015 and 24 June 2016. On that occasion, the applicant picked up BLS while they were in the kitchen and carried her horizontally. When he went to put her down, he rubbed her vagina area on the outside and on the inside of her clothing.

The alleged offending was first revealed when the applicant visited NS at the complainants’ home on the evening of 23 June 2016, after he had been requested to do so by LS to check on her welfare. During that visit, the applicant and NS became intimate and the applicant put his hands under her clothing. After he departed, NS telephoned LS to tell him what had happened. CBH was present during that conversation. Her mother spoke to LS, and either during or after that conversation, CBH said ‘[The applicant] does that to me and [BLS] too’. As a result of that disclosure, NS telephoned the police, who attended at their home on the same evening, and spoke to each of the complainants. Three days later, on 27 June 2016, separate VARE interviews were conducted by the informant, Detective Senior Constable Vercoe, with CBH and BLS.

The evidence of each of the complainants, at the trial, consisted of their VARE interviews, and of the recordings of special hearings subsequently conducted on 2 October 2018.

Summary of evidence

In the VARE, CBH described the two incidents that were the subject of charges 1 and 2. She said that the first incident (that was the subject of charge 1) occurred sometime before Christmas 2015. She described how when the applicant visited their home, she and her siblings liked to wrestle with him. On the occasion in question, they were wrestling in the lounge room of the home. The applicant caught CBH, and tickled her. He then commenced to put his hand down to her pants and he started to rub her on the vagina. He did not put his hand under her knickers. CBH said that he was touching her for about five seconds. She told him to stop, but he continued to touch her. She then yelled for her brothers to come and help her, and they wrestled with the applicant. She said that at that time her father was away, and her mother was in her bedroom.

When asked (by the informant) whether there were any other occasions that she wished to talk about, CBH said that the applicant ‘did it’ a couple of months ago, in about March 2016. She was able to remember it was about March, because it was before her birthday. On that occasion, CBH was sitting on the couch next to her mother. The applicant approached and started to wrestle with NS. CBH then joined in and commenced to wrestle with him. At that time NS’ telephone rang and she went to her bedroom. The wrestling continued. While they were doing so, the applicant again rubbed her on the vagina, and this time he put his fingers under her knickers. CBH responded by saying ‘Stop’ about three times. She shouted for BLS, who came to her assistance. She said it stopped when BLS pulled her up.

CBH gave evidence that on the evening when the police attended (23 June 2016), the applicant had given her a hug when she was walking down the hallway towards the kitchen, and he had tried to put one hand down her front. However, she walked away to go and make her brother a piece of toast, and he left.

CBH said that the first occasion, on which she told anyone about those matters, was in the previous week (23 June). Her mother NS was in bed, and was very upset, after the applicant had left their home. In her evidence, CBH said:

I told Mum that he started doing it to [BLS] and, like, I started explaining it to her, but I didn’t get this far.

In the special hearing, CBH was cross-examined about the circumstances in which she revealed the offending to her mother. She said that on that occasion her mother was talking to her father (that is, LS) about something that had happened between her (her mother) and the applicant on that night. CBH came into the room and lay next to her mother, and she heard parts of what her mother was telling LS. Her mother was upset, and was telling LS that there had been ‘rubbing where you shouldn’t’. CBH waited for the telephone call to end, and said to her mother ‘He does that to me and [BLS]’. After that, her mother telephoned LS, and she then telephoned the police.

In cross-examination in the special hearing, CBH denied that she only told her mother about what had happened to BLS. She said ‘I did mention me and [BLS]’. CBH said that she could not recall telling the policeman, who attended that night (Senior Constable Parkinson), that the applicant had touched her on New Year’s Eve, and also on that night. She said that before the police arrived, she spoke further to her mother about what had happened. She could not remember telling her mother that something had happened on New Year’s Eve, and that it happened on that night (23 June) also. However, she said (in cross-examination) that in fact the applicant did touch her on that night, and that she also said that she knew that ‘something did happen’ on New Year’s Eve.

CBH confirmed that during the period of three days between when the police arrived at their house, and the VARE was conducted, she spoke to her mother and father, and BLS ‘about it’. She confirmed that they talked ‘about it all together’.

CBH agreed that, when the applicant visited their home, her sister BLS, her brothers and she herself all used to jump on the applicant and wrestle with him, and that the applicant was fun to be with. Her mother also sometimes joined in the wrestling. She said that she did not wrestle with the applicant every time he visited, and sometimes she would just sit on the couch. She said that when the applicant touched her in the course of the wrestling, she would say ‘Stop’, and that that occurred in front of her sister and her two brothers. She said that her mother would sometimes be around and sometimes she would be in the kitchen. She agreed that, on one of the two occasions that she described to the police, her mother was in the same room when she yelled out for the applicant to stop.

CBH agreed that between the first and second occasions on which the applicant touched her, she would join in the wrestling when the applicant visited their home. In addition, in the period between the second occasion on which he touched her, and the evening on which the police arrived, when the applicant visited, she would join in the wrestling with him. She also said that at no time did the applicant threaten her or tell her not to tell her mother, so that she was free to tell her mother about what had occurred.

CBH said that when she heard her mother talking to LS on the telephone on the night that the police came around, her mother was upset, and she was also upset. She denied that she said to her mother that the applicant ‘does that to me and [BLS]’ in order to comfort her mother.

CBH agreed that when Senior Constable Parkinson arrived at her home that night, she told him about the occasions of New Year’s Eve and of that night (23 June), when the applicant had touched her. However, she did not tell him of the two occasions that she had referred to in her VARE. She said she did not mention those incidents because she ‘thought that was enough to say’.

In her VARE interview, BLS said that the applicant did ‘rude’ stuff to her when her father was away. She could not recall the first time it happened. She said that it had occurred both in the previous year and in the current year, and it started around Christmas. The applicant would pretend that he was playing with her, and he would rub inside and outside her underwear. She said that that occurred on about twenty occasions. It happened once at the applicant’s home, and on the other occasions at the complainants’ home.

BLS then described the incident that was the subject of charge 3. The incident occurred in a shed at the applicant’s home. At the time her father was in the kitchen. BLS was doing some hula hooping. She then went up to the applicant’s daughter, and together they wrote a little note to the applicant saying ‘you’re a little Princess’. When they gave the note to the applicant, he grabbed hold of her. The applicant was then sitting on a chair in the shed, and BLS’ mother was sitting on another chair. He turned BLS around, put her on her side, and put his hand inside her underwear, touching her on the vagina. She said that her mother was sitting on a chair, but the applicant faced her away so that her mother could not see what happened. When asked (by the informant) how long the applicant rubbed her for, she responded it went for ‘[h]ow long it takes to do a coffee’, because her father was making her mother a coffee. BLS said that when the applicant rubbed her, she said ‘Can you please stop’, and ‘Stop’, but the applicant did not stop. Then her father came in, and the applicant put her down. BLS ran off to do some exercises. At some stage her father asked her ‘What happened’ and she told him. Her father responded that he would wait to see if it happened again. (Those circumstances constituted charge 3).

BLS said that the offending happened once at the applicant’s house, and about four other times at her parents’ house. When asked (by the informant) to describe any of those times, she said it occurred in the lounge room. Her mother was in the room at the time, but she was ‘dealing with the boys’. BLS was watching television, and she was sitting on the applicant’s lap on a chair. The applicant started to rub his hand on her hair. He then started ‘pulling up and down’ on her pants. In doing so, he rubbed BLS’ navel. She tried to stop him from rubbing ‘anywhere else’, and the applicant started to try and rub her lower down. She said ‘so he tried to get in but I kept pushing it down’. She kept trying to move his hands, and asked him to stop, because she did not want him to do it. Then the boys ran up to the applicant and started fighting with him. Those circumstances constituted charge 4 (attempt to commit an indecent act with a child under the age of 16 years).

BLS said that the last occasion occurred when the applicant was carrying her in the kitchen. As he started to put her down, he commenced to rub her inside her underwear and then outside her underwear. She said that the incident lasted for five seconds. She said that the applicant said to her ‘Don’t tell mum’. She also said that the applicant said that to her every time he rubbed her. (That incident was the subject of charge 5).

In her VARE, BLS described how she first came to mention the offending to anyone. She said that it was night time and she got out of bed because she was thirsty. When she went into the kitchen, she saw the applicant and her mother on the couch, and the applicant had his hand inside her mother’s pants rubbing her. Once the applicant had left, her mother called the police and they came.

At the commencement of the special hearing, when the prosecutor asked BLS if there was anything she wished to change in the VARE, she said that she wanted to change the part of her account (in respect of the offence that was the subject of charge 3) when she told her father of the applicant’s conduct. She said that at that time, her father was not listening to her because he was dealing with her younger brothers. In cross-examination, BLS confirmed that on the day before the special hearing, she had watched the VARE, and spoken to the prosecutor. She said that when the prosecutor asked her if there was anything she wanted to change, she said ‘Kind of’, but she did not tell him what she wished to change.

BLS said that in that incident (that was the subject of charge 3), her mother was sitting next to her, and when the applicant touched her, BLS said ‘Stop it’ a number of times in a normal voice. However, her mother would not have been able to hear her, because the applicant had turned her to the wall. She said that his hand was down her underwear for as long as it takes to make a cup of coffee, which is about two minutes.

Counsel then questioned BLS about the account of that incident that she had given in her VARE, namely, that when her father entered the room, she told him what had happened, and her father said ‘We’re going to see if it happens again’. However, in the special hearing, BLS said that her father did not say anything, because he was busy with her younger brothers. In cross-examination (at the special hearing), BLS said that while CBH was being questioned in the special hearing, her father told her (BLS) that what she had said in the VARE was wrong.

BLS said that on the night on which the police arrived, she had seen the applicant rubbing her mother while they were on the couch. BLS then went back to bed and fell asleep, and she did not hear her mother call the police. Her mother woke her, because she wanted to know if the applicant had rubbed her or touched her in inappropriate spots. BLS responded to that question ‘Yes’. They then went into the lounge room where the uniform police were. CBH and her mother were present. The police wanted to know if the applicant had touched her inappropriately.

BLS said that in the couple of days between that date and the VARE, she spoke to her mother and father about the applicant having touched her. However, she did not speak to CBH about that matter at that time.

NS gave evidence in a special hearing. By way of background, she said that there was a friendly relationship between her family and the applicant’s family, and that the families would visit each other in their homes.

NS then described the events of 23 June 2016. On that date, she had drunk some wine and she was on new medication. During the evening, she became emotionally upset. She telephoned her husband, who was driving from Brisbane back to Melbourne. As a result (but unbeknown to her), her husband contacted the applicant, who then visited NS’ home, in order to make sure everything was alright. In the events that transpired, NS and the applicant became intimate, to a level described by the prosecutor (in a leading question) as being ‘hands under clothing’. Subsequently, after the applicant had departed, NS telephoned her husband and told him what had happened. She was then emotionally upset. At that point, CBH was in the bed with her. While she was speaking to her husband, CBH said ‘[The Applicant] does that to me and [BLS] too’. After CBH said that, NS became very distressed. She terminated the telephone call to her husband, and rang the police. NS asked CBH to describe what the applicant did to her, but CBH did not say much about what had happened.

NS said that when the police arrived, BLS was in bed. The police spoke to CBH first in the lounge room. At that point, NS was absent from the room. The police then asked if they could speak to BLS. At that stage NS had not spoken to BLS. When the police spoke to BLS, NS was not present in the room, she was with CBH in her own room. NS further said that in the period after the police left, and before CBH and BLS participated in the VARE interviews, there had been no family discussion about what CBH said to her. She said that the police had instructed them that they were not allowed to discuss the matter. NS further said that she had never seen the VARE interviews, and the children had not told her what they had said to the police. A recording of the triple zero telephone call, that NS made to the police (and a transcript of that telephone call) was tendered in evidence.

In cross-examination, counsel noted that when NS made the triple zero telephone call, she said that she had just spoken to her elder daughter, who had told her that a family friend had touched her younger daughter in inappropriate places. NS, in cross-examination, said that she did not then mention that CBH had said that she herself had been interfered with, because she (NS) was emotional. She said that when CBH spoke to her, CBH had said ‘He does it to me and [BLS]’. NS said that she was not present when the police spoke to CBH, because she was not allowed to be there. She also said that subsequently, when CBH was giving evidence in the special hearing, LS, BLS and she herself were in a room on the second floor of the building. She did not hear LS speak to BLS about what BLS had said in her VARE interview, but she was not present in the room for the entire time that CBH was giving evidence. Accordingly, BLS and LS were alone together for some of that time. She also confirmed that when the applicant used to visit their home, he would engage in normal playing and wrestling with the children.

By agreement between the parties, the police statement of LS was read into evidence. LS said that in about July 2016 he was driving his truck back to Melbourne, when he received a telephone call from NS, who seemed upset. Accordingly, he telephoned the applicant and asked him to go around to his home and check that NS was alright. Subsequently, LS spoke again to NS on the telephone. NS told him that the applicant had come around and that they had fondled each other. At that stage in the telephone conversation, NS became distressed. LS could then hear CBH’s voice in the background. At first he could not hear what CBH said, but then she repeated it, saying ‘He does that to me and [BLS]’ and ‘When he tries it on me, I just walk away’. NS told LS that she would telephone the police.

In his statement, LS said that the applicant would often ‘muck around’ with the children, wrestling with them and giggling. At no time had any of the children told him that the applicant had been touching them in an inappropriate manner.

The prosecutor also read into evidence an agreed statement of fact. The statement recorded that Bruce Nibbs, a member of counsel, appeared on behalf of the prosecution in the special hearings. On 1 October 2018, Mr Nibbs had a conference with BLS after she had finished watching her VARE interview. He asked BLS if there was anything that she had told the police on the VARE that was not true. BLS responded ‘No’. Mr Nibbs asked BLS if there was anything that she could remember now, that she should have told the police, and her response was ‘No’. At no stage during that conference did BLS indicate that she wished to change or explain any aspect of her recorded statement to the police.

Senior Constable Richard Parkinson, who was then stationed at Ballarat North Police Station, gave evidence that he had attended at the home of the two complainants in company with Senior Constable Reese shortly after 1.00 am on 24 June 2016. When he arrived, the older girl, CBH, was sitting on a couch, and the younger girl, BLS, was in a bedroom. Senior Constable Parkinson spoke to CBH for a couple of minutes, and she told him of a sexual assault that had been committed against her. Subsequently, BLS was brought into the lounge room and she sat on a couch. CBH was still on the couch. NS was relaying information to Senior Constable Reese, who in turn was on the telephone relaying that information to the informant Detective Senior Constable Vercoe. Senior Constable Parkinson spoke to BLS for a couple of minutes to find out if she had anything to say about something that might have happened to her.

In cross-examination, Senior Constable Parkinson confirmed that when he spoke to CBH, she detailed two incidents in which she said she had been touched. One incident had occurred on New Year’s Eve, and the other happened on the night on which the police attended at the premises (23 June). They were the only two incidents that CBH detailed to him. If she had complained about anything else, Senior Constable Parkinson would have noted that down. While he was speaking to CBH, NS was in the same room relaying information to Senior Constable Reese. NS would have been able to hear what CBH told him. Senior Constable Parkinson confirmed that when he spoke to BLS, CBH and NS were also present in the room, but NS was not sitting on the couch at that point. He said that BLS told him that the applicant had touched her on the private part outside her knickers.

Detective Senior Constable Vercoe, the informant, was the final witness. He arrived at the complainants’ family home shortly after 1.00 am on 24 June. He then had a private conversation with CBH, and no-one else would have been able to hear it. That conversation lasted for five to ten minutes. Vercoe did not go into all the details of the incidents, as he was mainly interested to see if anything had occurred that night. After he had spoken to CBH, she was taken out of the room. He then had a private conversation with BLS. As a result of what he was told by the two girls, he considered that it was necessary to conduct VARE interviews with them.

In cross-examination, Detective Senior Constable Vercoe said that in view of what CBH had said to Senior Constable Parkinson, about being interfered with on that night, he was concerned to establish if anything had occurred on that night. However, by the time that he left, he was confident that CBH was not alleging that anything had happened to her on that night. He also said that BLS was unsure when the touching had occurred in the past, but she said that it had happened on a number of occasions. Detective Senior Constable Vercoe stated, in his evidence, that he did not go into a lot of detail about those matters that night.

The recorded interview between police and the applicant was tendered in evidence. In the interview, the applicant denied that he had touched CBH or BLS inappropriately.

Ground 1 — submissions

Ground 1 alleges that the jury’s verdicts are unreasonable or cannot be supported having regard to the evidence. The applicant relied on three principal factors in support of that ground, namely:

(a) the credibility and reliability of each complainant was affected by significant inconsistencies in their accounts;

(b) the allegations that were the basis of charges 2–5 were inherently implausible; and

(c) there was a risk that the evidence of each complainant was contaminated by discussions that they had with their parents, and each other, between the date on which the police attended at their home and the VARE interviews in which they participated.

Counsel for the applicant commenced by pointing to matters which, he submitted, were substantial deficiencies in the evidence of both CBH and BLS. When CBH first spoke to Senior Constable Parkinson, she mentioned two occasions upon which she said that the applicant had indecently touched her, namely, on New Year’s Eve, and earlier in the night of 23 June 2016. She did not allege any other offending. Subsequently, in the VARE interview, CBH described an incident on the day that the police visited her house (23 June 2016), but she said that on that occasion although the applicant tried to put his hands down her, they only got to her belly. That incident was not the subject of a charge on the indictment. Relevantly, CBH did not allege, or refer to, the New Year’s Eve incident. Further, the two principal incidents, described by her in the VARE — that were the subject of charges 1 and 2 — were not mentioned by her to Senior Constable Parkinson. Further, in cross-examination, CBH accepted, that in the period between speaking to the police on 23 June, and the VARE that was conducted on 27 June, she had discussed what the applicant had done with her parents and with BLS. In those circumstances, it was submitted, there was a substantial risk that her account had been influenced by those discussions and that the evidence she gave in the VARE was not the product of her independent memory.

Counsel identified some five matters relating to BLS’ evidence, which, he contended, were significant deficiencies. First, at the commencement of the VARE, BLS was unable to recall the first or last time that the applicant had done ‘rude stuff’ to her. However, subsequently, when she described the events that were the subject of charge 3, she said that the applicant had not done anything like that to her previously. Secondly, at one point, BLS stated that the applicant had rubbed her vagina inside and over her underwear more than twenty times, and on another occasion she said that it had occurred five times. Thirdly, after BLS had described the events that were the subject of charge 3, when asked whether she could remember any times when the applicant had touched her at her house, she responded ‘No’. However, later in the VARE, she said that it had occurred on four other occasions at her house, and her descriptions of those events were the basis of charges 4 and 5. Fourthly, when BLS spoke to Senior Constable Parkinson on 23 June 2016, she said that the applicant had touched her vagina outside her underwear. However, charges 3 and 5, which were based on the VARE, involved the applicant touching her beneath her underwear.

The fifth matter, relied on by counsel, concerned the circumstances relating to BLS’ description of the incident that was the subject of charge 3. In her VARE, BLS stated that, almost immediately after the applicant had committed the indecent act that was the subject of charge 3, she told her father what had occurred. She said that her father said he would not call the police because he was going to figure out if the applicant was going to do it again. She described her father as not being angry, but in fact being quite happy, relating to that matter. However, at the commencement of the special hearing, BLS indicated that she wished to make a change to her VARE. She said that she had tried to tell her father what had happened, but he was not listening, because he was dealing with her younger brothers. On the day before the special hearing, after BLS had reviewed her VARE, she told the prosecutor that there was nothing that she wished to change in, or add to, the account that she gave in the VARE. The prosecutor’s evidence, as to that conference, formed part of the agreed statement of facts that was read to the jury. When BLS was cross-examined about that change in her evidence, she accepted that her father had spoken to her about the accuracy of what she had said in the VARE. She accepted the proposition put by defence counsel that her father had told her that her original evidence must be wrong.

Counsel further submitted that all of the charges against the applicant were inherently implausible, as they were based on offending that was alleged to have occurred in circumstances in which there was a very high risk of detection. Charges 2, 4 and 5 involved offending at the complainants’ home while other members of their family were present. Charge 2 was committed against CBH while BLS and her two younger brothers were in very close proximity, and continued despite CBH saying ‘Stop’ several times. Charge 4 was committed against BLS while her mother and brothers were present in the same room. Further, counsel pointed out that, although CBH said that the applicant had previously indecently assaulted her, she nevertheless joined in the wrestling with him when he visited their home. Similarly, BLS also continued to engage in that activity with the applicant.

Counsel for the applicant contended that the events, that were the subject of charge 3, were particularly implausible. The applicant’s daughter, with whom BLS had been playing immediately before the offending, was present and nearby. BLS’ mother was sitting next to her. BLS told the applicant to stop a number of times, yet the offending persisted, with her mother sitting next to her.

Finally, counsel submitted that, in the case of each of BLS and CBH, the accounts that they gave on their VARE might have been contaminated by the circumstance that they each had spoken with their parents between 23 June 2016, when the police first attended at their home, and 27 June, when each of them participated in their VARE interviews. In particular, counsel noted that the account given by CBH, on the night of 23 June, did not include the two incidents which she described in the VARE interview. It was contended that there was a significant risk that in recounting those events, CBH had been influenced by conversations which she had had with her parents (and with BLS) about those matters.

In response, counsel for the respondent contended that the matters, relied on by the applicant, did not constitute significant deficiencies in the evidence of either CBH or BLS. In respect of CBH’s evidence, when CBH spoke to the first police responder (Senior Constable Parkinson), the conversation was brief, and it was not suggested that the two incidents that CBH related to Senior Constable Parkinson were the sum total of the conduct that she alleged against the applicant. Similarly, Detective Senior Constable Vercoe did not seek a detailed account from CBH when he attended at the home. Rather, he was concerned to establish whether there was any necessity to obtain a medical examination that night. When CBH was cross-examined at the special hearing, she explained that she told Senior Constable Parkinson about the two incidents (on New Year’s Eve and on the evening of 23 June), because she thought that that was ‘enough to say’ at that point.

Counsel contended that there was no substance in the submission made on behalf of the applicant that the account given by CBH was affected by discussions that she had with her family before the VARE. The evidence at trial did no more than establish that CBH had talked about the matter with her parents and with BLS. However, defence counsel did not seek to elicit what was discussed during those conversations. On the other hand, NS said that the only matters that were discussed at that time were issues pertaining to CASA and the fact that the complainants had come forward.

In relation to BLS’ evidence, counsel for the respondent submitted that BLS’ account on the number of offending incidents was not inconsistent. When asked how many times the applicant had rubbed inside and outside her underwear, she said that that had occurred about twenty times. When she was asked a different question, namely how many times it happened like the one occasion at the applicant’s home (when the applicant put her hands under her underwear), she responded ‘about five’. At all times BLS was consistent as to the number of occasions that the offending occurred at the applicant’s home (one occasion).

Counsel further submitted that there was no relevant inconsistency between what BLS said to Senior Constable Parkinson at her home, and the account that she gave in the VARE. Parkinson only spoke with BLS for a few minutes, in which BLS disclosed that the applicant had touched her over her underwear. That allegation was consistent with her subsequent account of the offending that was the subject of charges 4 and 5. There was no evidence that the contents of the disclosures that BLS made to Senior Constable Parkinson were said by her to be the total of the offending against her by the applicant.

In respect of the issues raised by counsel for the applicant relating to charge 3, counsel for the respondent noted that, at the time of the VARE, BLS was seven years of age, and as such she had some difficulty in explaining just what had passed between herself and her father on the occasion of that offending. Counsel noted that at no time did BLS claim that she had told her father in clear terms precisely what had occurred. When BLS gave evidence, she admitted that she had discussed the change in her evidence with her father. BLS did not say that her father had told her to say that part of her VARE was wrong. Rather, he had said to her that what she had said in the VARE was, in actual fact, incorrect.

Counsel further noted, in respect of the issue of inherent implausibility, that it is well established that sexual offending, of the kind complained of in this case, commonly does occur in circumstances which involve a significant risk of detection. The evaluation of the implausibility of the alleged conduct ultimately involved a judgment about human behaviour, which was a matter for the jury. The evidence given by each complainant was cross-admissible to support a tendency of the applicant to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk.

Counsel for the respondent further contended that there was insufficient evidence to support the proposition that there was any material risk that the evidence given by each complainant, in their VARE interviews, had been contaminated by discussions which they had had with their parents, or with each other, between the attendance of the police at their home on the evening of 23 June 2016, and the conduct of the VARE interviews. In that respect counsel noted that counsel who represented the applicant at the trial did not question either complainant about the substance of the conversations that they had had with their parents.

Ground 1 — analysis and conclusion

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

The principles, that apply to such a ground, have been discussed in a number of decisions of the High Court and this Court. They were conveniently summarised by this Court in R v Klamo in the following terms:

The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:
1.The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2.In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3.In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4.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.[3]

[3]R v Klamo (2008) 18 VR 644, 653–4 [38] (citations omitted).

In determining the question whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused, the appellate court is required to undertake its own independent assessment of the evidence that was before the jury.[4] In addressing that question, the court must give full weight to the proposition that it is the jury that is the body entrusted with the primary responsibility of determining guilt or innocence of the accused.[5] In R v Baden-Clay, the High Court stated:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[6]

[4]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); SKA v The Queen (2011) 243 CLR 400, 406 [14], 409 [22] (French CJ, Gummow and Kiefel JJ); Fennell v The Queen [2019] HCA 37, [81].

[5]M (1994) 181 CLR 487, 493.

[6]R v Baden-Clay (2016) 258 CLR 308, 329 [65] (citations omitted).

In applying those principles, it is convenient to consider, first, the submissions made on behalf of the applicant concerning the evidence of CBH.

The principal point, made in respect of the evidence of CBH, is that there was an inconsistency between the incidents that she described to Senior Constable Parkinson, and the incidents that she later spoke about in the VARE interview. It will be recalled that when Senior Constable Parkinson attended at the complainants’ home on 23 June 2016, CBH told him that the applicant had indecently touched her on two occasions, namely on the previous New Year’s Eve, and on the day on which the police attended. Further, when she spoke to Senior Constable Parkinson, CBH did not describe to him either of the incidents that she related in the VARE interview, and which formed the basis of charges 1 and 2.

In considering whether there was thus a material inconsistency in the accounts given by CBH, it is important to bear in mind the context in which Senior Constable Parkinson spoke to each complainant. On the evening in question, he was on general duties on night shift, operating the divisional van. As such, when he attended at the premises of the complainants, he only spoke to each complainant for a short period of time which, in evidence, he said was ‘a couple of minutes’. There was no suggestion in his evidence that, when he spoke to CBH, he sought to elicit from her the totality of the complaints that she made about the applicant. It was not suggested that that was the role which Senior Constable Parkinson undertook. At some stage while he was in attendance at the complainants’ home, the SOCIT unit was notified, and in response Detective Senior Constable Vercoe attended at the premises. In those circumstances, it was plainly open to the jury to consider that there was no significance in the fact that CBH did not mention to Senior Constable Parkinson the two incidents that formed the subject of charges 1 and 2.

It is correct that, in the VARE, CBH did not say, specifically, that the applicant had touched her on the vagina on the evening on which the police attended. However, after she had described the two incidents that were the subject of charges 1 and 2, she was asked whether there were any other incidents she wished to speak about. CBH responded that on the evening on which the police attended at her house, the applicant came out of her mother’s room, gave her a hug, and tried to touch her, but he only got so far as her stomach. She said that at that time she was walking down the hallway to make her brother some toast. She said ‘I was walking down and he gave me a hug and … [l]ike, kind of like normal but he was going like that … [w]ell like — like, when we wrestled, like … when he gave me a hug, he let go with one hand and tried to put it down … but I kind of, like, walked away to go bake him toast and he left’.

It is also correct that in the VARE, CBH did not mention that the applicant had indecently touched her on the previous New Year’s Eve. However, in view of the structure of the questions asked of her in the VARE, it is understandable that CBH did not refer to that incident during that interview.

At an early stage in the interview, CBH was asked why she had attended to talk to the police, to which she responded ‘inappropriate stuff that people do’. When asked who ‘the people’ were, she said ‘[Carl] … my dad’s friend’. A few questions later, she was asked to describe the ‘first time’ that something had happened. In response, CBH described, in some detail, the incident that was the subject of charge 1. That description covered some fifty nine questions asked of her. She was then asked whether there were any other times that she wished to talk about, in response to which she said ‘he did it only a couple of months ago’. In response to further questions, CBH then described the incident that was the subject of charge 2. After answering a number of questions in relation to that incident, she was then asked whether there were ‘any other incidents’ that she wished to speak about. In response, CBH then described what had occurred in the hallway on the evening on which police attended, and to which we have just referred. After describing that incident, CBH was then asked who was the first person that she told about what had occurred. In response, CBH described the events of 23 June 2016, and as to how she came to reveal to her mother what the applicant had done to her and BLS. She was then asked a question directed to a separate topic, namely, to describe what the applicant looked like. Following that, she was then asked the very general question: ‘Is there anything else you can think of that you want to tell me about today?’. In that context, it is understandable that in answer to that question CBH answered ‘No’. After a short break, CBH was asked to provide further details concerning the first and second incidents.

In light of the structure of the questions that were asked of CBH during the VARE, it is understandable that she did not, on that occasion, speak about the incident that she had earlier revealed to Senior Constable Parkinson, and which she said had occurred on the previous New Year’s Eve. In the course of the special hearing, the fact that CBH did not refer to the New Year’s Eve incident, in the VARE, was the subject of some brief questions in cross-examination. When it was put to her that that incident did not occur, CBH responded ‘It did happen’. Taking all those matters together, we do not consider that, in the context, the fact, that CBH did not refer to the New Year’s Eve incident in the VARE, was a matter that substantially or materially affected the credibility or reliability of the evidence that she gave.

Counsel for the applicant has also sought to impugn the evidence of CBH on the basis that it was influenced by conversations that she had with her parents and BLS between 23 June and the time at which she participated in the VARE interview three days later. In cross-examination in the special hearing, CBH agreed that she had spoken with her parents and BLS ‘about this’ during that period. However, she was not cross-examined as to the content of the conversations which she had with her parents and BLS during that period. Subsequently, in cross-examination, it was put to her, by counsel for the applicant, that the two incidents, which she described in the VARE, were the product of discussions which she had had with her parents and with BLS during that period. CBH responded ‘I didn’t make anything up’.

In her evidence, NS (in cross-examination) said that there had not been any family discussion about what CBH had told her, because she had been instructed by the police that they were not allowed to discuss the matter. She said that the children spoke briefly to a lady from the Centre Against Sexual Assault (CASA) to whom they had been linked, but there had not been any conversations within the family about the matters in respect of which the police had attended at the family home.

In essence, then, the differences between the account given by CBH to Senior Constable Parkinson, and the account that she gave on the VARE, were not of particular moment. Nor was there any evidence that the account that CBH gave, in the VARE, and in the special hearing, was in any way influenced or affected by discussions she had had with her parents and with BLS in the meantime. In that respect, it is relevant that, from the very outset, CBH had maintained that the applicant had inappropriately touched her (and BLS). It was CBH who was the genesis of the allegations, when she was comforting her mother NS on the night in question. While the incidents, that she related to Senior Constable Parkinson, were different to the incidents that she described in the VARE, and that were the subject of charges 1 and 2, she did say, first, that something had happened on New Year’s Eve, and, secondly that the applicant had attempted to indecently touch her on the night of 23 June. When she spoke to Senior Constable Parkinson, she was not asked to describe the totality of the incidents in which she alleged the applicant had indecently assaulted her. The fact that she described two different incidents, when she was questioned in the VARE interview, to those that she described to Senior Constable Parkinson, was, accordingly, not a material inconsistency in her evidence.

Counsel for the applicant further maintained that the account given by CBH, in respect of the incident that was the subject of charge 2, was inherently implausible, as, on her account, the applicant ran a high risk of being detected. In our view, that point is of limited moment in the context of the version of events given by CBH in respect of charge 2. At the time of that incident, CBH’s younger brothers were about five years of age. They were hardly likely to have seen, let alone understood, the significance of what CBH alleged that the applicant did to her. The fact that CBH called out, in a loud voice ‘stop it’, would not have been likely to have alerted anyone else in the home that something untoward was occurring. It was quite common for the applicant to engage in playful wrestling with CBH and her siblings when he visited them, and CBH’s cries for the applicant to desist, from what he was doing, would not, in that context, have been likely to have engendered any suspicion in the mind of CBH’s mother or any other person present in the premises.

In reviewing the evidence given by CBH, it must be borne in mind that, from the outset, CBH consistently gave an account that the applicant had, on a few occasions, indecently touched her. It is understandable that she felt sufficiently emboldened to reveal the applicant’s conduct to her mother, when she heard her mother telling her husband what the applicant had done to her herself. It is relevant that, at that point, it was CBH who volunteered (without prompting) that the applicant had similarly been involved in indecently touching herself and her sister BLS. It is true that that statement, made by CBH to her distraught mother, triggered a chain of events that culminated in the VARE interviews and the charges against the applicant. Nevertheless, it is significant that the starting point, of the disclosures made by CBH, was the circumstances described, namely, the spontaneous and understandable revelation by CBH of the conduct that she alleged against the applicant.

Having had the opportunity to view and listen to the evidence given by CBH, in the VARE, and in the special hearing, we formed the view that she was capable of being properly considered to be a credible and honest witness. She gave her account in a spontaneous and matter of fact manner. At no stage did she tend to exaggerate, or seek to improvise. In the VARE, she was understandably embarrassed when describing, to Detective Senior Constable Vercoe, what the applicant had done to her. However, her answers were given directly, without any indication of confabulation. In the special hearing, her answers were quite brief and monosyllabic, and it was more difficult to form any view of her credibility while under cross-examination. Nevertheless, in our view, the jury was entitled to form the view that, based on the demeanour of CBH, both in the VARE and the special hearing, she was a person who was endeavouring to tell the truth.

For those reasons, we are not persuaded that the jury’s verdict, in respect of charge 2, was unreasonable or could not be supported having regard to the evidence. In other words, in our view, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of charge 2.

We turn, then, to the five points made by counsel for the applicant in respect of the evidence of BLS.

In respect of the first point, it is understandable that when BLS was asked the general question as to whether she could remember the first time or the last time that the applicant had done ‘rude stuff’ to her, she responded in general terms, stating that it had occurred during the previous year and in the current year. She also stated that the applicant commenced to interfere with her ‘around Christmas’. Later in the VARE, when she was asked to describe the last occasion on which the applicant had interfered with her, she described the incident that was the subject of charge 5. Given that BLS was only seven years of age at the time of the VARE, it is understandable that she could not be more specific about the dates on which the relevant incidents occurred.

In respect of the second matter raised by counsel for the applicant, counsel for the respondent is correct in pointing out that, in fact, BLS was not inconsistent in stating the number of occasions upon which the applicant had interfered with her. BLS was twice asked how many times the applicant rubbed inside and outside her underwear and how many times he had his hands down or on the outside of her pants. On each occasion, she answered that that had occurred about twenty times. On the other hand, when specifically asked how many times the applicant had touched her beneath her underwear, she answered about five times. Plainly, the two sets of questions were different, and accordingly the answers given by BLS to them were not inconsistent.

When BLS first reported the offending to Senior Constable Parkinson on 23 June 2016, she did state that the applicant had touched her on the vagina outside her underwear. The account that she gave of charges 3 and 5, in her VARE, did involve the applicant touching her on each occasion beneath her underwear. However, as pointed out by counsel for the respondent, Senior Constable Parkinson only held a brief conversation with BLS. He said that he only spoke to her for ‘a couple of minutes’, and the purpose of doing so was to find out if she had anything to say about something that might have happened to her. It was not suggested, by Senior Constable Parkinson, that he sought an account from BLS of all of the instances on which the applicant had interfered with her.

The third matter, relied on by counsel for the applicant, concerned answers given by BLS to some questions asked of her in the VARE after she had described the incident that was the subject of charge 3. After being asked questions about the events of 23 June 2016, the informant asked her whether she remembered any times when the applicant had touched her at her house. BLS responded ‘No’. The informant then reminded BLS that she had said that touching had occurred twenty times previously, and that she described the occasion (which was the subject of charge 3) which had taken place at the applicant’s house. The informant then asked her ‘Has that type of thing happened anywhere else?’ to which BLS responded ‘No’. The informant then asked her ‘So has it only happened once?’, to which BLS responded ‘It’s happened about five times’. When asked where it happened the other times, she said that it occurred once at the applicant’s house, and four times at her home (once in the kitchen, twice in the lounge room and once in the hallway). She then went on to describe the incident that was the subject of charge 4.

Taken literally, the answers thus given by BLS to the questions asked of her were contradictory. However it must be borne in mind, as no doubt the jury were conscious, that at the time of the interview, BLS was seven years of age. At that stage of life, a child is not possessed with the communication or comprehension skills of an adult. Having reviewed the VARE, it was apparent to us that the negative answers given by BLS, to the questions whether the applicant had touched her at her home or anywhere else, may well have been nothing more than a negative response by BLS because she did not properly understand the content or context of the questions asked of her. Her immediate subsequent answers, that the touching beneath her underwear had occurred about five times, and that it had occurred once at the applicant’s house and four times at her home, together with her description of the events that were the subject of charge 4, did not seem to be the product either of pre-rehearsal or some sudden inspiration. Rather, it would seem that, once she was asked a question that she properly understood, she was able to answer it responsibly and relevantly.

We do not consider that the fourth matter, relied on by counsel for the applicant in respect of BLS’ evidence, constituted a material inconsistency in her evidence. As mentioned, Senior Constable Parkinson said that he spoke with each complainant for a couple of minutes. He recorded BLS as telling him that she had been touched by the applicant on her private parts outside her knickers. She was unsure when it happened in the past, but it had happened a number of times. In the VARE, BLS recounted two incidents (that were the subject of charges 3 and 5) which involved touching underneath her knickers. However, in the VARE, she was interviewed for a period of 38 minutes. She was asked specific questions, which enabled her to describe specific incidents in some detail. In those circumstances, the difference, between the account that she gave to Senior Constable Parkinson on the one hand, and her description of the events that were the subject of charges 3 and 5 in the VARE, were not, in our view, a material inconsistency in her evidence.

The fifth matter, relied on by counsel for the applicant, relating to the evidence of BLS, is a matter of some concern. In her VARE interview, BLS clearly stated that, immediately after the applicant had committed the indecent assault that was the subject of charge 3, she told her father about it. She said that he was not angry, and that he would not call the police, because he was going to see if the applicant repeated the conduct again. On the day before the special hearing, BLS reviewed her VARE evidence. After she did so, in answer to a question from the prosecutor, she said that there was nothing that she wished to change or add to it. On the following day, on which the special hearing occurred, while CBH was being cross-examined, BLS’ father said to her that what she had said in her VARE was wrong. Consequent upon that, at the commencement of the special hearing, BLS changed her evidence about her father’s reaction when she told him as to what the applicant had done.

Plainly, that change in her evidence is of some significance. It indicates that BLS was susceptible to being influenced, in respect of the evidence that she gave, by her father. Nevertheless, as we will next discuss, there was no suggestion that there had been any substantive exchange between BLS and her parents (and in particular her father) before she spoke to Senior Constable Parkinson, or before she participated in the VARE interview. As we have noted, the evidence of NS was that no such conversation occurred, because the police had instructed her that the matters were not to be discussed with CBH or BLS before they participated in the VARE. Further, there was no suggestion that either parent had influenced BLS in the account that she gave of the incidents that were the subject of charges 3, 4 and 5.

Counsel for the applicant submitted that there was a risk that BLS’ evidence had been contaminated, because she had spoken with her parents about the applicant’s conduct between the date on which the police attended at her home and the date on which she underwent the VARE interview. However, as in the case of CBH, the evidence given by BLS, about that matter, was quite limited. In cross-examination in the special hearing, she was asked what she had told her mother on the night the police attended. BLS said:

The only thing that I told Mum was ‘Yes’ because [the applicant] had touched me inappropriately’.

BLS was then asked, in cross-examination, whether in the days between the attendance of the police and the VARE, she would have spoken to her mother and father about the applicant touching her. BLS responded ‘Yes, yes’. She said that she did not speak to CBH during that time. That section of cross-examination constituted the only questions asked of BLS concerning the conversations or discussions that she had had with her parents between the date on which the police attended at her home and the VARE. Thus no questions were asked of BLS, and she did not give any evidence, as to the nature or content of any discussion she might have had with her parents during that time. On the evidence, there was, accordingly, little basis upon which the applicant might contend that the evidence given by BLS, on the VARE, had been in any way infected or influenced by anything that had been said to her by her parents.

The submission made by counsel for the applicant, that there was an inherent improbability about the account given by BLS of the incidents that constituted charges 3 and 4, has some substance. On each occasion in which it was alleged that the applicant inappropriately touched BLS, she said that her mother was in the same room. In respect of the incident that was the subject of charge 3, her mother was sitting on a chair which was close to the chair on which the applicant was seated while holding BLS at the time of the offending.

On the other hand, it must be borne in mind that at that time NS must have been quite accustomed to the applicant having physical contact with her children, in the context of wrestling and other such activities. In describing the incident that was the subject of charge 3, BLS said that the applicant had turned away from BLS’ mother, so that she was unable to see what he was doing to BLS. In respect of the incident that was the subject of charge 4, BLS said that at the time her mother was busy dealing with her two twin sons who were then five years of age. It was open to the jury to conclude that, in those circumstances, the presence of BLS’ mother in the same room at the time of the offending was not a sufficient basis to raise a reasonable doubt about the account of the events given by BLS. As counsel for the respondent has pointed out, it is not uncommon for offending, such as that which was alleged in this case, to occur in circumstances in which the accused person took a substantial risk of detection. The question, whether the presence of the complainants’ mother, in the same room, was sufficient to raise a reasonable doubt, was very much a matter for the jury, based on its collective wisdom and experiences of life.

In that context, the jury was entitled to rely on the evidence given in respect of each charge as being cross-admissible, in respect of each other charge, as tendency evidence. Before the commencement of the trial, the evidence was ruled by the trial judge to be so admissible. That ruling was upheld, on an interlocutory appeal to this Court.[7] In particular it was held that, following the decision of the High Court in Hughes v The Queen,[8] the evidence on each charge was relevant and probative of a tendency of the applicant to act on a sexual attraction to underage girls, notwithstanding the evident risk of detection.[9] Consistent with that ruling, the trial judge directed the jury in the following terms:

If you do find that [the applicant] had a tendency to have a sexual interest in pre-pubescent females and to act on that interest by touching or rubbing the vagina inside or outside the underwear, in circumstances where there was an imminent risk of detection by family members, then you can use that conclusion to find that it is more likely that he committed the offences [the subject of the charges].

[7]Danny (a pseudonym) v The Queen [2018] VSCA 223 (‘Danny’).

[8](2017) 263 CLR 338, 361–3 [59]–[63] (Kiefel CJ, Bell, Keane and Edelman JJ).

[9]Danny [2018] VSCA 223, [35].

Counsel for the applicant further contended that the accounts given by each complainant were implausible, because, after the incidents in which they claimed to have been indecently touched by the applicant, they nevertheless continued to engage, voluntarily, in wrestling and other physical activity with the applicant. While that submission does have some point, nevertheless the conduct of each complainant must be viewed through the prism of two young and unsophisticated children. It is plain that they bore no animosity to the applicant, and that, like their brothers, they enjoyed engaging in wrestling with him. The question whether their conduct, in doing so, while at the same time being the subject of sexual assault by the applicant, was inconsistent, was essentially an issue for the jury, taking into account the accumulated experiences and understanding of human nature of each of the jurors.

Finally, we have also had the opportunity to view and listen to the recordings of the VARE interview and the special hearing conducted in respect of BLS. In each hearing, BLS presented as a quite credible witness. She did not overstate or exaggerate her account. She was naturally reticent about discussing intimate matters. The account that she gave did not seem to be the product of rehearsal or fabrication. She was a little more forthcoming than her sister CBH under cross-examination in the special hearing. By and large, her answers, in the VARE and on the special hearing, were cohesive and substantially consistent. It was certainly open to the jury to consider that BLS’ presentation and demeanour, in those hearings, weighed in favour of the acceptance of the account given by her.

For the foregoing reasons, we are not persuaded that the verdicts of the jury on charges 2 to 5 (inclusive) were unreasonable or could not be supported having regard to the evidence. Having reviewed the evidence, we consider that it was reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on each of those charges. Accordingly, ground 1 is not made out.

Ground 2 — submissions

Ground 2 is directed to the decision of the judge not to give a direction to the jury concerning the evidence of BLS pursuant to s 32 of the Jury Directions Act 2015.

At the conclusion of the evidence, counsel for the applicant submitted that the judge should give such a direction to the jury, due to the inconsistencies contained in the witness’ evidence, and the inherent improbability of aspects of it. In essence, counsel relied substantially on the matters that have been advanced in support of ground 1 on this application. At the conclusion of counsel’s final address, the judge gave a short ruling concerning that application. His Honour considered that whatever unreliabilities and inconsistencies existed in BLS’ evidence had been fully exposed via counsel’s final address, and that those matters were ‘quite obvious’. His Honour further considered that the matters, relied on by the applicant, were significantly different to those which render the evidence of witnesses, such as people who are criminally involved in the offence, inherently unreliable.

In support of ground 2, counsel again relied on the matters, relating to the evidence of BLS, that were advanced in support of ground 1. In particular, counsel referred to the fact that BLS had spoken with her parents and with her stepsister CBH, about the allegations, before she participated in the VARE interview. Counsel also relied on the change in BLS’ evidence as to whether she told her father what had happened immediately after the incident that was the subject of charge 3. It was submitted that the risk of contamination of BLS’ evidence, and the need for child witnesses not to be influenced by adults in giving their evidence, might not have been fully appreciated by the jury. The credibility and reliability of BLS as a witness was essential to the prosecution case on each of charges 3 to 5, and was also cross-admissible as tendency evidence in respect of charges 1 and 2. Accordingly, the evidence played a central role in the trial.

In response, counsel for the respondent relied on the submissions that he advanced in answer to ground 1, to contend that there were in fact no inconsistencies of any moment in BLS’ account. Further, and in any event, the jury was fully apprised of the matters relied on by the applicant in respect of BLS’ credibility and reliability. Accordingly, he submitted, the jury would have fully appreciated the significance, if any, of the matters raised on behalf of the applicant in that respect.

Ground 2 — analysis and conclusion

Section 12 of the Jury Directions Act provides that, after the close of evidence, trial counsel must request the trial judge to give (or not to give) particular directions in respect of the matters in issue. Section 14(1) provides that the trial judge must give a requested direction unless there are good reasons for not doing so. Section 32(1) provides that the prosecution or defence may request, under s 12, that the judge direct the jury on evidence ‘of a kind that may be unreliable’. Section 31 provides an inclusive definition of the phrase ‘evidence of a kind that may be unreliable’. The section contains five specific categories of evidence which it deems to be ‘evidence of a kind that may be unreliable’. Those specific categories are materially identical or similar to five of the seven categories of unreliable evidence that were originally prescribed by s 165 of the Evidence Act 2008. (Division 4 of Part 4 of the Jury Directions Act specifies directions which must be given concerning identification evidence, which constituted a sixth category prescribed by s 165 of the Evidence Act).

The question, whether particular evidence, which does not come within any of the defined categories specified in s 31 of the Jury Directions Act (or s 165 of the Evidence Act), is of a kind that might be unreliable, has been considered in a number of authorities. At common law, the principal reason for directing a jury, that the evidence of a particular witness, or category of witness, might be unreliable, was that, in such a case, the jury might not be adequately conscious of the potential unreliability of that evidence, or of the reasons why that evidence might be unreliable.[10]
[10]Karpany v The Queen (1986) 161 CLR 315, 324–5 (Brennan J); R v Miletic [1997] 2 VR 593, 605–6.

It has been recognised, in cases concerned with either s 31 of the Jury Directions Act or s 165 of the Evidence Act, that the same rationale applies in determining whether evidence, which does not fit within a specified category prescribed by those provisions, is evidence of a kind which might be unreliable, so as to require that a direction by the judge be given to the jury to that effect. Thus, in such a case, in determining whether it is necessary to give an unreliability direction, the central issue is whether, by reason of a particular circumstance, or combination of circumstances, the evidence in question might be potentially unreliable in a respect, or to an extent, which might not be properly appreciated by the jury, in the absence of an appropriate direction by the trial judge.[11]
[11]R v Baartman [2000] NSWCCA 298, [62] (Kirby J, with whom Spigelman CJ and Smart AJ agreed); R v Stewart (2001) 52 NSWLR 301, 321 [97]–[98] (Howie J) (citations omitted); Allen (a pseudonym) v The Queen (2013) 39 VR 629, 639–40 [38] (citations omitted); Young v The Queen [2015] VSCA 265, [69]–[72] (citations omitted) (‘Young’); Hudson (a pseudonym) v The Queen [2017] VSCA 122, [49]–[50] (citations omitted) (‘Hudson’); Wade (a pseudonym) v The Queen [2019] VSCA 168, [35]–[36] (‘Wade’).

In Young,[12] counsel for the accused, at trial, had sought an unreliability direction in relation to the principal prosecution witness, Mr Bond, on the grounds that that witness was affected by drugs at the time of the events that were the subject of the charges, that he had previous convictions for trafficking in drugs, and that he was, at the time of the trial, in prison. The judge declined to give that direction. This Court upheld that decision, stating:

The jury was very well aware of the deficiencies that had been alleged to affect Bond’s evidence. There was nothing about those alleged deficiencies which rendered his evidence of a kind that was potentially unreliable within the meaning of s 165. The jury was in a position properly to evaluate the alleged deficiencies in the evidence.
Nor is it the case that the courts can be assumed to have special experience or knowledge of the likely effects of the use of a given drug on a particular witness, beyond that of an ordinary member of a jury. To assist the jury, it may instead be permissible for expert evidence to be adduced as to the effect or likely effect of the use of a drug on a witness. This was not done in the present case.[13]

[12][2015] VSCA 265.

[13]Ibid [71]–[72].

In Hudson,[14] the applicant was a priest, who was charged with sexual offences that had occurred some twenty-eight years previously, in respect of a year 7 student CK at the school at which the applicant taught. At the time of the alleged offence, CK, on his own account, was heavily drugged. In the years before he attended the school, he had had a number of behavioural problems for which he had received a course of treatment. At that time, he was diagnosed with frontal lobe epilepsy, which caused him to become over-excited. After he had left school, he suffered vivid nightmares of being raped by Religious Brothers in circumstances that were identical to those alleged against the applicant and another priest. During his teenage years, he commenced abusing alcohol and marijuana, as a result of which he suffered a drug induced psychosis. He was diagnosed and treated for schizophrenia during his mid-20s.
[14][2017] VSCA 122.

The Court held that, in light of the combination of those factors, the judge ought to have given an unreliability direction to the jury in respect of the witness. In reaching that conclusion, the Court said:

In approaching that question, it is not sufficient that one or more, or all, of the circumstances, relied on by the applicant, might in some way have impacted on an assessment of the reliability of the evidence of CK by the jury. For, as noted by Kirby J in a passage in his judgment in Baartman, which we shall set out below, evidence given by all witnesses may be potentially unreliable. At common law, the principal reason for directing a jury, that the evidence of a particular witness might be unreliable, in a case in which the evidence of that witness fell outside the recognised categories of unreliable evidence, was that, in such a case, the jury may not be sufficiently alert to the potential unreliability of that evidence, or to the reasons why that evidence might be unreliable.
In cases to which s 165 of the Evidence Act 2008 applies, the same rationale has generally been applied by the courts to determine the question whether evidence, which does not fit within the categories prescribed by sub-s (1) of that provision, nevertheless is evidence of a kind which may be unreliable, so as to require a direction by the judge to that effect. Thus, in Baartman Kirby J stated:
Section 165(1) is not an ‘exclusive code’ ... The opening words of s 165(1) make it clear that the circumstances in which evidence may be unreliable extend beyond the classes of evidence identified by subsections (a) to (g). ...
In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence, or because there is the danger that the jury may over-estimate the probative value of certain evidence …[15]

[15]Ibid [49]–[50] (citations omitted).

Applying those principles, the Court then concluded:

Taking those matters into account, we consider that the circumstances that we have outlined, relating to CK’s age, mental and emotional health, drug and alcohol abuse, and the lapse of time, were factors which had the capacity to have materially affected the reliability of CK in a manner, and to an extent, which might not have been fully appreciated and understood by the jury, in the absence of a direction by the judge requiring the jury to take particular care about its assessment of the reliability of CK’s evidence, and setting out the reasons why such care must be taken. While, as we have stated, it might be expected that a lay person would have an understanding of the effects of alcoholism, drug abuse, mental ill-health, and each of the other matters relied on by the applicant, the courts, from their own experience, have gained particular familiarity with the ravages caused by alcohol and drug abuse, and with the effects of mental ill-health of the kind suffered by CK. The concatenation of circumstances in this case, to which we have adverted, had a real potential to adversely affect the reliability of CK’s memory. Given the centrality of the issues as to the reliability of CK’s memory, and particularly the issue whether he might have been transposing the wrongdoings of one priest onto another, there was, we consider, a material risk that the jury might not have approached its task fully conscious of the risks associated with that combination of factors pertaining to CK’s background, in the absence of a judicial direction to that effect, bearing, as it would, the weight and authority of the office of the judge.[16]

[16]Ibid [61].

The recent decision of the Court in Wade is another instance of circumstances in which, it was held, the trial judge ought to have given the jury an unreliability direction under s 32. [17]
[17][2019] VSCA 168.

In that case, the complainant, who was the nephew of the applicant, gave evidence of sexual offending by the applicant, when the complainant was between six and thirteen years of age. The offending was alleged to have taken place between twenty-five and thirty years before trial. During his teenage years, the complainant had become mentally unwell and he had received psychiatric treatment. There were important inconsistencies in his evidence. Before making his police statement, he had made notes of events of which, subsequently, he had no memory. He said that he made the notes to assist him to distinguish facts from fantasy. The complainant’s mother gave evidence that the complainant had had an emotional breakdown at around sixteen years of age, and he had been medicated with anti-psychotic drugs. When he was hospitalised with that illness, his behaviour became bizarre. Trial counsel for the applicant had sought an unreliability direction from the jury, on the ground that the complainant’s intervening long-standing psychotic illness, and the evidence that he gave of his tortuous reconstructive thought processes, rendered his evidence potentially unreliable.

In deciding that the trial judge erred in failing to give that direction, the Court stated:

We consider that it was not open to his Honour to conclude that there were good reasons for declining this request. The prospect of confabulation is well understood by those who regularly practise criminal law, but in our view, may not have been fully appreciated by this jury, in the absence of a carefully tailored s 32 direction along the lines of the model direction at 4.8.7 of the Criminal Charge Book. As in Hudson, we consider that the concatenation of circumstances to which we have adverted had a real potential to adversely affect the reliability of the complainant’s memory, and given the importance of the complainant’s reliability to the prosecution case, we are of the view that there were no good reasons for declining this request made by the defence under ss 12 and 32 of the [Jury Directions Act].
We observe that the structure of s 32 is designed to encourage trial judges to give an unreliability direction where there is a reasonable possibility of unreliable evidence. The question then becomes, ‘are there good reasons for declining the request?’, rather than ‘are there good reasons for giving the direction?’. The answer to the question will, of course, depend on the individual circumstances of the case, but it ought be borne steadily in mind that the default position is that the direction should be given.[18]

[18]Ibid [38]–[39] (citations omitted).

In our view, the matters relied on by counsel for the applicant at the trial — and on this application — concerning inconsistencies and deficiencies in the account given by BLS were not, of themselves, sufficient to necessitate, or indeed to warrant, the giving of a direction by the judge to the jury under s 32 of the Jury Directions Act.

Each of those matters involved issues of fact which, quintessentially, fell within the province of the jury. In particular, it was for the jury to determine, first, whether the matters relied on by the applicant were indeed inconsistencies or deficiencies in her evidence, and, secondly, if so, the effect that such matters had on the jury’s assessment of the credibility and reliability of the evidence given by BLS. The inconsistencies and deficiencies, relied on by the applicant, did not raise issues, relating to the credibility and reliability of BLS, which might not have been fully appreciated by the jury in the absence of judicial direction. In those circumstances, a direction given to the jury, by the judge, would, in our view, have inappropriately constituted an intrusion by the judge on the province of the jury, as judges of the facts, to consider and weigh the effect, if any, of the matters raised on behalf of the applicant on its assessment of the evidence given by BLS.

The potential effect, on the credibility and reliability of the evidence given by BLS, of the conversations which she had with her parents, and, in particular with her father before the special hearing, is a matter of more moment. In her evidence in the special hearing, BLS said that she had spoken with her parents, but not with CBH, between the date on which the police attended at her home on 23 June 2016, and the date on which she participated in the VARE interview. More significantly, while BLS was waiting to give evidence in the subsequent special hearing (and while CBH was being cross-examined in her special hearing), her father spoke to her, and told her that the account that she had given of the incident, that constituted charge 3, was wrong. It was as a consequence of that conversation that, at the commencement of the special hearing, BLS made the correction to her account which accorded with what her father had told her. That correction was significant, because on the previous day, after having watched her VARE evidence, she had confirmed to the prosecutor that that evidence was correct.

As we have noted, at the special hearing, counsel for the applicant did not explore, with BLS, the detail of the discussion she had had with her parents between the date upon which the police attended at her home and the date of the VARE interview. As we have mentioned, NS gave evidence that during that period the only topic that was discussed related to the involvement of CASA.

Plainly, the fact that there were some discussions between BLS and her parents, and in particular that her father had told her that part of what she had said in her VARE interview was incorrect, was a relevant matter for the jury to take into account in determining the credibility and reliability of the evidence given by BLS. However, the issue was exposed in the evidence given by BLS in the special hearing, both in her evidence-in-chief and in cross-examination. Counsel for the applicant referred to it in his final address to the jury, but, it must be observed, he gave very little emphasis to that factor.

The question of the effect of the conversation which BLS had with her father, before she gave evidence at the special hearing, was a matter which was within the capability of the jury to understand and evaluate. That circumstance was not a matter of which courts have special experience or knowledge, and which might not be sufficiently appreciated by a jury. The great strength of the jury system is that it places in the seat of judgment men and women from the community, who bring to their deliberations the wisdom and knowledge that they have derived from their respective experiences of life.[19] A jury is well equipped to understand the potential effect, on the memory and account given by a child, of the kind of remark made to BLS by her father before she gave evidence in the special hearing. The effect of such a remark was not a matter which fell solely within the understanding and experience of the judiciary. It was not a matter which, in our view, required the provision of a judicial direction under s 32 of the Jury Directions Act.
[19]Doney v The Queen (1990) 171 CLR 207, 214.

That conclusion is reinforced by the circumstance that, at the trial, counsel then representing the applicant did not rely, at all, on the conversation which BLS had with her father outside the special hearing, or on the effect of any conversations that BLS might have had with her parents before she gave evidence, as a circumstance which potentially rendered the evidence given by BLS of a kind that might be unreliable for the purpose of s 31 of the Jury Directions Act. Rather, counsel for the applicant, at trial, relied solely on the inconsistencies and deficiencies in BLS’ evidence, which we have discussed, as the basis for his submission that the judge should give the jury a direction under s 32 of the Act.

Accordingly, we do not consider that the judge erred in refusing to give a direction to the jury under s 32 of the Jury Directions Act concerning the evidence of BLS. We have reached that conclusion mindful of the proposition stated by this Court in Wade, namely, that ordinarily, where there is a reasonable basis for considering that evidence may be of a kind which is unreliable, the ‘default position’ should be that the direction be given, in the interests of justice. For the reasons we have discussed, we do not consider that there was a sufficient basis to consider that the evidence was of a kind that might be ‘unreliable’ in the sense discussed in the authorities to which we have adverted.

For the foregoing reasons, we do not consider that ground 2 is made out.

Conclusion

Accordingly, the applicant has failed to succeed on either ground of the application for leave to appeal. We would grant the applicant leave to appeal on both grounds, but dismiss the appeal.

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Citations

Carl Danny (a pseudonym)[1] v The Queen [2020] VSCA 8

Most Recent Citation

Parker (a pseudonym) v The Queen [2021] VSCA 139

Cases Citing This Decision

3

Andrew Kovachev (a pseudonym) v The King [2024] VSCA 325

Farshchi v The King [2024] VSCA 235

Parker (a pseudonym) v The Queen [2021] VSCA 139

Cases Cited

7

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0

Whitsed v The Queen [2005] WASCA 208

R v Baartman [2000] NSWCCA 298

[2020] VSCA 8

7 February 2020