Deacon (a Pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0062

JESSE DEACON (A PSEUDONYM)[1]

THE QUEEN

[1]To ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant and the complainant’s mother.

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JUDGES:	KAYE and T FORREST JJA and TAYLOR AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 October 2018
DATE OF JUDGMENT:	12 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 257 First Revision: 20 February 2019
JUDGMENT APPEALED FROM:	DPP v [Deacon] (Unreported, County Court of Victoria, Judge Stuart, 23 February 2018)

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CRIMINAL LAW – Appeal against conviction – Applicant convicted of seven charges of sexual penetration of a child under 16 years – Convicted of two charges of indecent act with a child under 16 years – Whether judge erred in granting leave to cross-examine an unfavourable witness – Whether verdicts of the jury were unsafe and unsatisfactory – Application for leave to appeal against conviction refused.

CRIMINAL LAW – Appeal against sentence – Pleaded not-guilty – Applicant sentenced to 17 years nine months’ imprisonment with a non-parole period of 13 years – Whether sentencing judge’s discretion miscarried – Whether judge treated lack of regard by applicant to consequences of offending and lack of insight and remorse as aggravating factors.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T F Danos	Victoria Legal Aid
For the Respondent	Mr C B Boyce SC and Ms D Karamicov	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA
T FORREST JA
TAYLOR AJA:

Following a trial in the County Court, the applicant was convicted of seven charges of sexual penetration of a child under 16 years, and two charges of indecent act with a child under 16 years. He was sentenced to a total effective term of 17 years and 9 months’ imprisonment with a non-parole period of 13 years. That sentence was comprised as follows:

Charge on Indictment F13858802.2	Offence	Maximum	Sentence	Cumulation
1	Sexual Penetration of a Child Under 16 (aged under 10 years) [s 45(1) Crimes Act 1958]	25 years [s 45(2) Crimes Act 1958]	7 years	Base
2	Sexual Penetration of a Child Under 16 (aged under 10 years) [s 45(1) Crimes Act 1958]	25 years [s 45(2) Crimes Act 1958]	7 years	2 years
3	Sexual Penetration of a Child Under 16 (aged under 10 years) [s 45(1) Crimes Act 1958]	25 years [s 45(2) Crimes Act 1958]	7 years	2 years
4	Indecent Act with Child Under 16 [47(1) Crimes Act 1958]	10 years [s 47(1) Crimes Act 1958]	18 months	6 months
5	Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) [s 45(1) Crimes Act 1958]	15 years[2] [s 45(2) Crimes Act 1958]	3 years 6 months	18 months
6	Indecent Act with Child Under 16 [47(1) Crimes Act 1958]	10 years [s 47(1) Crimes Act 1958]	1 year	3 months
7	Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) [s 45(1) Crimes Act 1958]	15 years2 [s 45(2) Crimes Act 1958]	3 years 6 months	18 months
8	Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) [s 45(1) Crimes Act 1958]	15 years2 [s 45(2) Crimes Act 1958]	3 years 6 months	18 months
9	Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) [s 45(1) Crimes Act 1958]	15 years2 [s 45(2) Crimes Act 1958]	3 years 6 months	18 months
Total Effective Sentence		17 years 9 months
Non-Parole Period:		13 years
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:		113 days
6AAA Statement: N/A
Other relevant orders: Forensic Sample Order; registered as a sex offender pursuant to s 34 Sex Offenders Registration Act 2004 with life reporting; sentenced as a serious sexual offender pursuant to s 6F Sentencing Act 1991 (Vic) in respect of charges 3 – 9; Disposal and Forfeiture Orders.

[2]Since the publication of these reasons, it has been noted that the sentencing table in paragraph 1 incorrectly states the

applicable maximum sentence to be 15 years imprisonment. The prescribed maximum sentence was 10 years imprisonment.

The applicant seeks leave to appeal the convictions and sentence.

Application for leave to appeal conviction

The application for leave to appeal the conviction is made on two grounds, namely:

1.The Court erred in ruling that the witness Fran McKechnie was an ‘unfavourable witness’ and as a consequence, the prosecution were able to allege the discontinued charges as uncharged acts.
2.In all of the circumstances, the verdicts were unsafe and unsatisfactory.

The second ground contained 15 particulars. Those particulars specified various evidentiary matters that, it was submitted, had the effect that the verdicts were unsafe and unsatisfactory.

The offence, that was the subject of charge 4, was alleged to have been committed by the applicant with his girlfriend Frances McKechnie. The offences, that were the subject of charges 5 to 9, were also alleged to have been subsequently committed by the applicant with his then girlfriend Jenni Smith. Ms McKechnie was originally charged with six counts ― three charges of sexual penetration with a child under 16 years, and three charges of committing an indecent act with a child under 16 years ― in connection with the circumstances in which charge 4 was alleged to have been committed by the applicant. After a committal proceeding, she was re-arraigned on a new indictment containing one charge of an indecent act with a child under 16 years, to which she pleaded guilty. On her plea, she gave an undertaking to the judge to cooperate with the prosecution and to give evidence against the applicant in respect of the matters that were the subject of charge 4. She was sentenced to be released on a bond to be of good behaviour.

Ms Smith was charged on indictment with three counts of sexual penetration of a child under 16 years, and two counts of an indecent act with a child under 16 years. Those charges concerned the matters that were the subject of charges 5 to 9 against the applicant. Ms Smith’s trial was held after the conclusion of the applicant’s trial. She was convicted on each charge. Ms Smith’s application for leave to appeal against conviction and sentence was heard by this Court at the same time as the application by the applicant.

Background

The applicant was born in July 1968. In 1992, he was diagnosed to be suffering from diabetes. During the following decade, his health deteriorated due to complications associated with that condition. In late 2003, he commenced to live with his sister, TD, and her children in their home in Frankston. TD had four children, two sons, and two daughters. The eldest daughter, the complainant, was born in January 1999, and the youngest daughter, SD, was born in 2003. Each of the offences were alleged to have been committed against the complainant between 2003 and 2011.

When the applicant first moved into his sister’s home, he occupied the main bedroom in the house. His sister’s sons occupied another bedroom, and the two daughters occupied the third bedroom. TD slept in the lounge room. In late 2006, TD obtained funding to construct a small bungalow in the rear of the premises. The construction of that building was completed in early 2007. The applicant resided in the bungalow from that time.

The prosecution case

Charges 1 and 2 were alleged to have been committed by the applicant when the complainant was five years of age. On that occasion, the applicant called the complainant into his bedroom, telling her that he wanted to check if she was wearing underwear. When the complainant went into the room, the applicant pulled her skirt down and told her to get onto his bed. The complainant complied with that request, and lay on her back on the bed. The applicant then inserted his penis into her vagina causing her pain. That conduct was the subject of charge 1. The applicant then removed his penis from her vagina and inserted his fingers into her vagina. That conduct was the subject of charge 2.

The events that were the subject of charge 3 were alleged to have occurred when the complainant was 8 years of age. By that time the applicant had moved into the bungalow at the rear of the Frankston premises. On the occasion in question, the complainant recalled lying on her back on the applicant’s bed, with her knees up. The applicant had oil on his fingers, and he was kneeling on the floor next to her. As he did so, he touched the complainant’s vagina and inserted his fingers into it, making her feel uncomfortable and sick.

The events, that were the subject of charge 4, took place in the bungalow when the complainant was 8 or 9 years of age. On that occasion, she went to the bungalow to have dinner with the applicant and his then girlfriend, Ms McKechnie. The applicant had made whipped cream after dinner. The complainant put the cream on Ms McKechnie’s neck and in her hair, as part of an innocent game. The applicant, Ms McKechnie and the complainant then went into the bedroom. Ms McKechnie removed her shirt and bra, and the applicant placed whipped cream on her stomach and breast in the presence of the complainant. He instructed the complainant to touch Ms McKechnie’s breasts, which she did, drawing pictures on her stomach and bare breast. It was that conduct that was the subject of charge 4. Ms McKechnie then got off the bed and had a shower. After she did so, under instruction from the applicant. She touched and inserted her fingers into the complainant’s vagina. The applicant then got on top of the complainant and inserted his penis into her vagina. While he did so, Ms McKechnie stroked the complainant’s arm and told her ‘everything is okay’. Ms McKechnie also put her hands on the complainant’s breast. All of those aspects of the incident were treated as uncharged acts in the trial.

The offences, that were the subject of charges 5 to 9, were alleged to have been committed when the complainant was about 11 or 12 years of age. On that occasion, the complainant was sleeping in the applicant’s bedroom. The applicant and his then girlfriend, Jenni Smith, were in the lounge room of the bungalow. They went into the bedroom and removed their clothes and the complainant’s clothes, so that all three of them were naked. The applicant then got on top of the complainant and inserted his penis into her vagina. That conduct was the subject of charge 5 (sexual penetration of a child under 16 years). While the applicant penetrated the complainant, Smith touched her hair and kissed her, telling the complainant to be quiet. Then, following that conduct, the applicant and Smith had sexual intercourse in front of the complainant. That conduct was the subject of charge 6 (indecent act with child under 16 years). The applicant then inserted his penis a second time into the complainant’s vagina while she was lying on her back. At that time Smith was still present in the room. That conduct constituted the events alleged in charge 7 (sexual penetration of a child under 16 years). While the applicant was penetrating the complainant, Smith touched the complainant’s head and back, and also touched her breasts. A short time later, when Smith was asleep, the applicant inserted his penis into the complainant’s vagina for a third time, that conduct being the subject of charge 8 (sexual penetration of a child under 16 years). At some point later in the night, while the applicant and Smith were kissing, Smith inserted her fingers into the complainant’s vagina. That conduct by Smith was the subject of charge 9 against the applicant, namely, sexual penetration of a child under 16 years.

Subsequently, on 6 November 2013, the complainant by telephone contacted Kids Helpline and disclosed the offending involving her uncle, the applicant. As a result, that organisation contacted the Department of Health and Human Services (DHHS). On the following day, 7 November 2013, DHHS reported the matter to Victoria Police. On the same day, the informant, Detective Senior Constable Meyer of the Frankston Sexual Offence and Child Abuse Team, and a DHHS worker attended the complainant’s school and a disclosure interview was conducted. The complainant’s mother, TD, was contacted. The complainant was conveyed to Frankston Police Station where a visual audio-recorded evidence statement (VARE) was recorded.

While the VARE was being conducted, the applicant attended the police station. He was arrested, and a record of interview was conducted with him.

Subsequently, the complainant compiled handwritten notes setting out some of the allegations that she made against the applicant. Those notes were tendered in the trial as Exhibit 3C. As a result of making that document, a second VARE statement was taken from the complainant on 24 July 2014. Following that, a second interview was conducted with the applicant on 22 October 2014.

In order to address the two proposed grounds of appeal, it is necessary to set out the evidence that was led in the trial in some detail.

Summary of evidence

The evidence in chief of the complainant comprised the two VARE statements taken from her. The cross-examination of her was conducted at a special hearing fourteen months before the trial. In addition, she was cross-examined, at a second special hearing before the trial judge, shortly before the commencement of the trial.

In the first VARE hearing, on 7 November 2013, the complainant made general allegations of sexual abuse against the applicant, but she did not specifically describe the incidents that were the subject of the charges against her. When asked what it was about her uncle that brought her to the police station that day, she said ‘When I was about 6 years old he, like, sexually assaulted me and I was raped by him’. She said that the applicant would put his hands under her shirt and touch her breasts, and he would put his hands down her pants. She also said that the applicant would sleep on the couch, and she would sleep in his bed, and in the middle of the night he would come in and try to touch her while she was sleeping by putting his hands down her pants and on her shirt. The complainant said that the sexual abuse commenced when she was about 6 or 7 years of age and it stopped when she was 11 or 12 years of age, when she became more aggressive and angry and would ignore him.

The complainant said that on one occasion, the applicant bought a corset for one of his girlfriends, and he told the complainant to wear it. When she did so, he took a photograph of her. She said that the abuse occurred five times a week and that it happened on most weeks. On the occasions on which she was raped, the applicant got on top of her and put himself inside her. He would whisper to her that ‘this is our little secret’. In addition to touching her on her breasts, putting his hands down her pants and putting his penis inside her vagina, he also used to put his fingers ‘in my butt’. The complainant said that, when she was about 10 or 11 years of age, she told her mother about the abuse while they were both watching the show ‘Neighbours’ on television. The complainant asked her mother what was on the television, and the mother responded ‘it’s called sexual assault’. The complainant said to her mother ‘Oh [Deacon] did that to me when I was younger’.

In the first VARE, the complainant also said that when she was talking with her friends, they were discussing their family life, and she told them that when she was little she was raped. She said that one of the friends, who she told, was Alexia at Mount Erin Secondary School. She said that when she was in Year 7 she met a lot of different people that had been through different things, and she started to use self-harm to get rid of her emotional pain.

In the second VARE interview, the complainant described more specifically the incidents that were the subject of the charges against the applicant. When she was asked to describe the first time she could remember the abuse, she said that she was then in preparatory grade in school. The applicant was living in their home. When the complainant came home at the end of the day, the applicant called her into his room. When she went into the room, the applicant checked whether she was wearing underwear. He pulled her skirt down, and instructed her to climb onto the bed. She lay on her back on the bed, and he penetrated her vagina with his penis. At the time his penis was hard, and it hurt a lot. The applicant then withdrew his penis, and put his fingers in her private part. She did not feel any wetness afterwards from him.

The complainant said that the incident, that was the subject of charge 3, occurred when she was in Grade 3. She was then 8 years of age. The incident occurred in the bungalow. She could not remember why she was in the bungalow. She recalled lying on her back on the bed with her knees up, and the applicant was kneeling on the floor next to the bed. As he did so, he put his fingers into her private parts.

The complainant stated that the incident, that was the subject of charge 4, occurred after she had visited the applicant, and his then girlfriend Fran (Ms McKechnie), in the bungalow one evening. On that occasion, the complainant had had dinner with them in the bungalow. The applicant started to make whipped cream, and the complainant started a ‘whipped cream fight’ by putting it in Fran’s hair and on her nose. As a consequence, the applicant and Fran went into the bathroom and she had a shower.

When they returned from the bathroom, the applicant told Fran to lie down across the bed. He removed her shirt, poured whipped cream over her breasts and stomach, and told the complainant to play with her. Accordingly, the complainant drew pictures on Fran with the whipped cream using her finger. Fran then got off the bed and had a shower to remove the whipped cream from her body. After the shower, Fran touched the complainant’s private parts with her fingers, and put her fingers in her private parts. Then at one stage the applicant raped the complainant. He was on top of her raping her, placing his private parts in her private parts. When he did so, his penis felt hard. At that stage, Fran was lying next to her stroking her arm. At one stage, Fran touched her breasts. During that time the applicant told Fran to ‘go and play with me’.

The complainant also described other uncharged acts which occurred involving herself, the applicant and Fran. She said that the applicant told her to touch Fran’s private parts, by putting her fingers in her private parts. When she did so, Fran held her hand and told her what to do.

The complainant said that the events, that were the subject of charges 5 to 9, occurred on one occasion when she slept over in the bungalow. After the applicant, his girlfriend Jenni and the complainant had watched television, the complainant went to sleep in the bedroom, and the applicant and Jenni remained in the lounge room. Subsequently they entered the bedroom. The applicant was not wearing any clothes and Jenni was only wearing a shirt. The applicant got on top of the complainant and inserted his penis into her vagina. While he was doing so, Jenni kissed her and touched her hair. The complainant was lying on her back and the applicant was on top of her. When the applicant entered her, it hurt, and she was crying and screaming. Both the applicant and Jenni told her to be quiet. Then the applicant and Jenni had sexual intercourse together while the complainant was lying on the edge of the bed. After that, for a second time, the applicant lay on top of the complainant while she was on her back, and he inserted his penis into her vagina. While he was doing so, Jenni was touching the applicant’s back and his head. When the applicant entered her, the complainant felt uncomfortable and it hurt. A short time later, the applicant again put his private part into the complainant’s private part. When he did so, his penis felt hard. In addition, at some point, while the applicant and Jenni were kissing and he was touching her, Jenni put her fingers inside the complainant’s private part.

In cross-examination at the first special hearing (in August 2016), the complainant said that she had called Kids Helpline, because she did not feel she was going to survive the night. When the counsellor asked her why she was feeling that way, she said that she had been sexually assaulted and she was in a dark place. She said that the Kids Helpline told her that DHHS would come to talk to her. On the next day, she was called into the school office where DHHS officers were. As a result she went to the police station and made a statement.

The complainant was cross-examined at some length about when the abuse of her by the applicant had ceased. She said that when she spoke to the police, she told them that the abuse ceased when she was 11 or 12 years of age. She said that she had first disclosed the abuse to her mother when she was 9 or 10 years of age. Later in the cross-examination, she said she was 11 years of age when that occurred. She told her mother that the abuse had already stopped, but she lied when she said that to her mother. However, after she spoke to her mother, the abuse ceased, because the complainant became more aggressive. The complainant agreed, in cross-examination, that when she told her mother and her friends about the abuse, she never told them that the applicant’s girlfriends, Ms McKechnie and Ms Smith, had been involved in the abuse. She also agreed that when she spoke to the police in the first VARE statement, she was speaking more about what happened in the house than in the bungalow.

The complainant said that when she was in Year 4, and was 10 years of age, she told her friend Brooke that she was being raped by the applicant. She also said that four years later she told her friend Cassie. She agreed that during the years she had a number of difficulties including an eating disorder, she had engaged in self-harm, and she had been required to leave school because of her conduct. During that period, her personal difficulties seemed overwhelming.

The complainant said that the last incident of sexual abuse was when the applicant and Ms Smith raped her. She said that Ms Smith had been involved in abuse of her whenever Ms Smith attended the bungalow, and that she was at the bungalow most weekends. However, she did not tell the police in the first video statement about any abuse involving Ms Smith or Fran McKechnie. She said that at the time she did not understand that females could be involved in sexual behaviour, and she did not know that women could be sexual predators. After she made the first statement, she had a counselling appointment, and she realised that she should have included those matters in the first statement, so she mentioned them in the second statement.

The complainant also agreed that when she spoke to the police in the second interview about the last incident (which was the subject of charges 5 to 9), she was able to include a number of specific details, such as the state of the weather, the fact that she was not wearing socks, and that she walked through cold grass. However, she confused the amount of times when the abuse occurred on that day. She explained that a lot of things happened during that incident, and she could not divide them into one, two or three occasions. She said that on that last occasion, on each of the three times that the applicant raped her, he had an erection. She said that it hurt. She did not look to see if the applicant had an erection, because she was either looking at the ceiling or her eyes were closed. But she felt it.

In re-examination, the complainant confirmed that she was 11 years old when she told her mother of the abuse. She told her mother the abuse had ceased, because she did not want her mother to think that she had the responsibility to fix her problem for her. She said that her mother did not deal with a lot of things well and she was not expecting much from her mother. The first friend she told at school was Brooke when she was in Year 3 or Year 4, and the next friend she told was Cassie. She also told Alexia, Jordan, Imogen Quelch and Sydney Street at school. When she first spoke to the police, she did not tell them about the involvement of Jenni or Fran in the abuse, because it took a while for her to figure out what had happened. She understood that males could sexually abuse females, but she had not seen anything on television about females doing it.

As mentioned, before the commencement of the trial, the complainant was cross-examined at a second special hearing before the trial judge. That cross-examination focused on the allegations made by the complainant as to the involvement of Ms McKechnie in sexual abuse of her, both generally, and also in connection with the incident which was the subject of charge 4. Counsel for the applicant put to the complainant the denials that had been made by Ms McKechnie (in the Basha hearing) of each of the uncharged acts described by the complainant in the second VARE interview. In response, the complainant said that Ms McKechnie was wrong in denying that those pieces of conduct took place.

The complainant’s younger sister SD gave evidence by means of a VARE interview. She said that while the applicant was living in their home, he did not leave his room much, but sometimes the complainant would go into his room. He would ask her if she wanted to watch a movie on the computer. SD was about 8 years of age when the applicant moved into the bungalow. She did chores for him, so she could earn pocket money. Sometimes the complainant, her brother and she went to the bungalow to watch the television set. They would each also visit the applicant by themselves. SD said that she would sleep over at the bungalow, and on occasions the applicant’s girlfriend Jenni would be there. She could not remember the complainant sleeping overnight at the applicant’s bungalow, but she might have done so. She said that she did not sleep in the bungalow with the complainant. In cross-examination, she said that there were a number of occasions on which she slept over in the bungalow. When she did so, she slept in the bed and the applicant slept on a couch. She had no memory of the complainant sleeping there.

The complainant’s mother TD gave evidence. She said that the applicant was diagnosed with diabetes at the age of 24 years. As a result, he was legally blind, and he had issues with his kidneys so that he required dialysis three times a week. TD described how initially, when the applicant moved into their home, he slept in the master bedroom, and the children slept in the other two bedrooms. In early 2007, the applicant moved into the bungalow. The children would visit him there because he had a very large television, and they would watch a movie there. Sometimes they would sleep over at the bungalow.

In 2012, when TD and the complainant were watching a police show on television, in which a girl had been sexually abused, the complainant said that the applicant had done that to her. TD responded that that was a serious thing to say and that she had to be really sure before she said something like that. The complainant responded that it was a serious matter. However, she did not say anything further about it.

As a result of that conversation, TD thought about what could have happened. She understood from the applicant that he was impotent because of his diabetes. She said that she did not take the matter any further because it did not come up again. The next occasion, on which she was aware of any issues, was in November 2013, when she received a telephone call from the informant.

In cross-examination, TD said that when the complainant had the conversation with her during the television show, she thought that it could not have happened, mainly because of the applicant’s condition. She said that during the time in which the applicant lived inside the main house and in the bungalow, she never had any concern that any of her children were in danger of being abused by him. When the complainant told her that the applicant had done to her what she saw on the television, she dismissed it because previously the complainant had been untruthful about some things, as teenagers can be. She said although she thought the television show that they were watching was a police show (‘SVU’), but they could have been watching Neighbours, when the complainant spoke to her.

TD said that the complainant and SD used to sleep over in the bungalow together. However, she could not say that there was an occasion when the complainant slept there and SD did not. They only slept there on infrequent occasions. She had no memory of the complainant sleeping in the applicant’s bedroom five nights a week when he was living in the home. The complainant could have gone into his room to watch the television. However, TD would not know whether she stayed there all night. She did not have any memory of the complainant sleeping in the bungalow for the majority of the week, but she could not say whether the complainant had gone out there to do so, because TD was sleeping in the front bedroom.

In re-examination, TD said that she had no concerns that any of her children were in danger of being abused by the applicant, because he had told her that he was impotent, he was her brother, and she (TD) could not understand how an adult could abuse a child.

Ms Belinda O’Donnell also gave evidence, that was pre-recorded in a special hearing. In 2013, Ms O’Donnell was a counsellor with a counselling service in Queensland, and, as part of her role, she received calls that were made to Kids Help Line anywhere in Australia. She stated that on 6 November 2013, at 6:20pm, she commenced a ‘web session’ with a young female who said her name was that of the complainant and that she was 14 years of age. The conversation was conducted in text, and a transcript of it was recorded within the web counselling system.

The transcript of the web conversation was tendered as exhibit 11. In it, the complainant was recorded as stating that lately she had become very emotionally distressed, that she had engaged in self-harm, and that she had tried to kill herself a few times. She said that she had a hard time trusting people, that she could ‘go mental’ if she left ‘it all unspoken’, and that she had planned to end her life. She also had thoughts about killing her uncle. When asked about those thoughts, the complainant said ‘he raped me when I was 7 until I was about 12 or 11 he ruined my childhood he deserves to die he can’t get away with it’. She also said that she tried to tell her mother about it when she was ‘little’, but her mother had ignored her.

At the end of the text conversation, Ms O’Donnell asked the complainant to telephone her, and the complainant did so. In that telephone conversation, the complainant told Ms O’Donnell that her uncle had raped her, that the abuse had occurred almost daily, and that she had concerns for her younger sister who was then 10 years of age. The telephone call lasted for about 45 minutes. At the conclusion of it, Ms O’Donnell obtained the complainant’s consent to make a call to ‘Child Safety’ about the issue.

In cross-examination, it was put to Ms O’Donnell that while in the text message the complainant had said that the applicant had raped her from when she was 7 until she was about 11 or 12, in the telephone conversation the complainant had said that the abuse had occurred when she was between the ages of 6 years and 12 years. Ms O’Donnell, in response, said that that was consistent with someone who had experienced significant trauma from early childhood. She did not consider that the difference in the ages, between that stated in the text message, and that in the conversation, was at all significant.

The prosecution then called a number of the complainant’s friends from school in relation to complaint evidence. The first such witness was Brooke Fox. Her evidence, which was given by means of a recorded interview, was fairly incoherent. Ms Fox stated that the complainant came to her school in Year 3. In the course of the interview, she was asked if the complainant ever told her anything about her uncle who stayed in the bungalow. Ms Fox said that the complainant had not told her much about her uncle, but she gathered that they were close. On one occasion, the complainant told Ms Fox that she had told her mother something about what she had told Ms Fox at the park, but Ms Fox was not able to remember the conversation that had taken place at the park.

Cassandra Wallace became friends of the complainant when she met her in Year 7 in secondary school. The complainant would speak to her about her family at home. On one occasion, Ms Wallace was having an argument with the complainant, because the complainant was getting ‘very bitchy’. When Ms Wallace asked her what was wrong, the complainant responded that she was having a bad time. She said, ‘I got raped, do you know what that’s like Cassie? It’s terrible’. Ms Wallace said that that conversation occurred at the end of Year 8 or the beginning of Year 9. When Ms Wallace spoke to other friends about it, they said that the complainant had already told them about it. In cross-examination, Ms Wallace confirmed that the complainant did not identify who had raped her.

Imogen Quelch became a friend of the complainant in Year 7 in 2012. On one occasion, when they were walking around the school, the complainant said to Imogen and her friends, ‘My uncle used to live with me and he raped me’. Ms Quelch said that all the other girls already knew about it, and she could tell that the complainant was upset about the matter. Ms Quelch said that the complainant told her on at least two occasions that she had been raped by her uncle. The first occasion was when they were in a group, and on another occasion when Ms Quelch was on her own. On that occasion, she was walking around with the group, and the complainant pulled her behind the group to tell her.

Alexia Kennedy also became a friend of the complainant in Year 7 in secondary school. She and the complainant studied mathematics and English in the same class. She recalled one occasion, when they were together in the Year 7 annex in the school, sitting on the ground doing an activity using blocks. The complainant was talking about her mother and her home. She said her mother was mean to her and things were bad at home. Then she said that her uncle had raped her. The complainant was really upset when she said that. She also said something about self-harm, and pointed to cuts on her arm that she had engraved on herself. Ms Kennedy said that she was only 12 years old at the time, and she did not take much notice of what the complainant had said to her. In cross-examination, she said that no-one else was sitting with the complainant and herself when they had the conversation. She had a clear memory that they were sitting on the ground at the time, but she could not recall how the conversation came up.

The prosecution called Frances McKechnie in relation to the incident that was the subject of charge 4. Ms McKechnie said that she had commenced a relationship with the applicant in 2007. The relationship lasted for sixteen months. At that time, the applicant was living in a bungalow in the backyard of the property in Frankston. Ms McKechnie stayed over at the bungalow on about six occasions on weekends. Towards the end of the relationship, the applicant lived in her house for about three months.

Ms McKechnie stated that when she stayed at the bungalow, the applicant’s sister and her four children lived in the main house. The children would come and visit the applicant, watch Foxtel on television, and eat. The complainant would visit quite frequently during that time.

Ms McKechnie said that sexual intercourse with the applicant was challenging because of his diabetes. He was not able to have a fully erect penis. However, there were a couple of times when he appeared to be harder than other times. When the applicant was well, they would have a sex life. She said that they had sex together on about twenty occasions. When asked to describe the hardness of his erection in terms of a number out of 10, Ms McKechnie said it would be 4 or 5.

Ms McKechnie said that she could recall an occasion involving the use of whipped cream. This occurred about 13 months after they had commenced their relationship. On one afternoon, the complainant was in the bungalow with them. There was a can of whipped cream, and the applicant suggested it would be fun to do finger painting with it on Ms McKechnie. As a result, they went into the bedroom, and Ms McKechnie lay on the bed. She pulled up her top, and cream was put on her stomach. The applicant and the complainant drew pictures with the cream on her stomach. At the applicant’s request, Ms McKechnie then removed her top and bra. The cream was sprayed on her chest, and the applicant told the complainant to draw pictures on her breast. When she did not do so, the applicant then told her to do so in a firmer voice. The complainant responded by drawing pictures on Ms McKechnie’s breast. Ms McKechnie then said that was ‘enough’, and she got up and went and had a shower. When she returned from the shower, the complainant was no longer present. Ms McKechnie said there were no other occasions when she was with the applicant and the complainant and there was sexual conduct between them.

Counsel for the prosecution then sought, and was granted, leave by the judge to cross-examine Ms McKechnie pursuant to s 38 of the Evidence Act 2008. In the course of that cross-examination, counsel put to the witness, and the witness denied, the other uncharged acts, about which the complainant had given evidence in her VARE interview. In particular, she denied the following allegations: that after she had had the shower, she went into the bedroom where the applicant had sexual intercourse with the complainant; that at the applicant’s request she put her fingers inside the complainant’s vagina; and that the complainant then inserted her fingers into Ms McKechnie’s vagina. Ms McKechnie also denied that she had been involved with the applicant in any other sexual activity concerning the complainant.

In cross-examination by counsel for the applicant, Ms McKechnie agreed that she was originally charged with three charges of sexual penetration of a child under the age of 16, and three charges of indecent act with a child under the age of 16. Ultimately, she pleaded guilty to one charge of an indecent act with a child under 16, for which she received a good behaviour bond. She confirmed that she gave the undertaking to give evidence at the trial of the applicant, and, as a result, the other five charges were dropped. She confirmed that the allegations made in the other five charges ― which comprised the uncharged acts relating to the whipped cream incident ― were untrue.

Ms McKechnie in cross-examination also denied that, on the occasions on which she stayed overnight in the bungalow, any of the children also stayed there. She rejected evidence that had been given by the complainant that she herself had interfered with the complainant on average about twice per week. She did not accept the proposition, put by counsel, that sexual intercourse with the applicant only occurred on occasions that were few and far between. She said that she had to get herself into a particular position during sexual intercourse, so that the applicant could penetrate her. She said that he was able to maintain an erection for about five minutes, but he was not able to ejaculate.

Ms McKechnie said that the whipped cream incident occurred during the afternoon, and not at night. It did not occur after dinner. She denied that she and the applicant had a shower together on that occasion. She confirmed, in cross-examination, that during the incident the complainant did touch her on the breast.

The last witness for the prosecution was the informant. The two interviews conducted with the applicant were tendered through the informant. In the first interview, the applicant denied any inappropriate sexual activity with the complainant. In the second interview, he told the informant that he was impotent, and not capable of having sex, during the whole of the period that was the subject of the charges. The informant put to the applicant the allegations made by the complainant in respect of each of the charges, except for charge 3, and the applicant denied each of those allegations.

Two witnesses were called on behalf of the applicant. The first witness was Ms Smith. She confirmed that she was facing charges in the matter. She stated that in September or October 2010 she developed a relationship with the applicant. At one stage during the relationship, she would visit him at the Frankston premises. During that time, she would stay at the premises. The relationship came to an end in November 2013.

Ms Smith stated that she would have stayed over at the Frankston premises on about a dozen occasions. She also visited the premises on other occasions when she did not stay overnight. She did not see the complainant each time she stayed there overnight, but she would have seen her on three or four of those occasions. During the visits, the applicant was unwell and Ms Smith would take him to his dialysis appointments. She said that the friendship between them did not develop into a sexual relationship, because the applicant was unable to ‘keep an erection’. She said that she tried to manually assist him, but she got no reaction. When she stayed overnight, she slept in a bed at the rear of the bungalow and the applicant slept on the couch in the main room. On one occasion, the youngest girl, SD, stayed and slept on the couch also. Ms Smith said that there were no occasions on which there was any sexual activity involving the complainant. Ms Smith said she had been questioned at length by the police about the allegations made by the complainant, and she said that those allegations were ‘an absolute load of crap’.

In cross-examination, Ms Smith disagreed with the statement, made by the applicant in his interview with the police, that the complainant had attached herself to Ms Smith, and that she used to come to the bungalow every time Ms Smith turned up. Ms Smith said she does struggle with her memory. She agreed that there were occasions when she stayed in the bungalow with the applicant for a period of four days. She said that she did not have a sexual relationship with the applicant. However, she had sent some explicit photographs of herself to the applicant, including a photograph with one breast exposed. She agreed that, in her interview with the police, she said that on one occasion she attempted to have sexual intercourse with the applicant. She denied that she was lying when she maintained that they did not have a sexual relationship.

Counsel for the applicant also called Dr Leon Chapman, who is a physician specialising in diabetes and general medicine. As part of his specialty, Dr Chapman has taken a particular interest in neuropathy and erectile dysfunction.

In his evidence, Dr Chapman said there is a definite correlation between diabetes and erectile dysfunction. It is a common complication of diabetes. Dr Chapman had not met the applicant, but he had read two files containing 300 pages of medical records relating to the applicant. Those records showed that the applicant was in a very bad condition with his diabetes. He was first diagnosed with diabetes in 1992, and there had been poor control of his diabetes. As a result, he had suffered complications, including nerve damage, kidney damage and damage to his eyesight. He said that diabetic neuropathy, of the kind suffered by the applicant, comprises a lack of sensation which commences in the longer nerves of the body, and starts then to climb the legs.

Dr Chapman said that diabetes also has a complication involving autonomic neuropathy, which affects nerves that go to the autonomic organs, including the heart, stomach and penis. In 2015, the applicant had commenced to suffer gastroparesis, which is a late manifestation of autonomic neuropathy. That condition affects the nerves going to the stomach. Ordinarily, the earlier manifestation of autonomic neuropathy in patients tends to be erectile dysfunction.

Dr Chapman said that there was no direct notation in the applicant’s records of erectile dysfunction, except that on one occasion he was offered a script for Sildenafil (which is commonly referred to as Viagra), and the applicant had declined it. However, there was nothing in the records that indicated why that medication was offered to the applicant.

Dr Chapman said that, nevertheless, he considered that it was probable that the applicant suffered from erectile dysfunction. He formed that view because erectile dysfunction is ordinarily one of the earliest sign of autonomic neuropathy, and gastroparesis is a very late sign. Accordingly, most patients who have neuropathy in the feet, also have erectile dysfunction. Thus, he considered it was highly probable that the applicant had suffered erectile dysfunction as early as 2005.

In cross-examination, Dr Chapman confirmed that the medical records of the applicant did not indicate any neuropathy up to the knees until 2007, and from that date until October 2010, the condition was described as neuropathy to the knees. The only reference in the applicant’s records to autonomic neuropathy was in 2015, when he was diagnosed to have gastroparesis.

Dr Chapman said that, generally, one of the symptoms of autonomic neuropathy is erectile dysfunction, but that can mean either an inability to get an erection, an inability to have a full erection, or an inability to maintain an erection for long. In the last mentioned case, the patient may be able to maintain an erection for some time. He said that, like any other medical condition, a patient can suffer varying symptoms of a particular condition.

Dr Chapman confirmed that in medical records of the applicant comprising 200 to 300 pages, there was only one entry in which Sildenafil was offered. There was no reference why it was offered, and it was declined.

The prosecutor put to Dr Chapman the evidence of Ms McKechnie, as to the incidence of sexual intercourse between her and the applicant in 2007 to 2008. The witness responded that, if she rated his erectile function as 4 out of 10, then he would describe that as erectile dysfunction. He agreed that, from that description by Ms McKechnie, the applicant had a form of an erection, and erectile dysfunction, at the same time. He agreed that erectile dysfunction does not occur overnight, so that on one day there is full function, and none a day later. Ordinarily, it takes months or years to develop. Dr Chapman agreed that there are methods of testing erectile dysfunction, including using a Velcro ring during the night and ultrasound, but those tests had not been conducted on the applicant.

Ground 1

The background to the issue, raised by ground 1, is a little complicated.

As we have mentioned, charge 4 related to the incident, in which the complainant alleged that the applicant had induced her to draw pictures on McKechnie’s naked breast which had been lathered in whipped cream. In her second VARE statement dated 24 July 2014, the complainant stated that, on the same evening, after Ms McKechnie had had a shower, the applicant, McKechnie and herself engaged in other sexual acts, which, in the trial, were treated as ‘uncharged acts’. Originally, each of those acts was the subject of charges against both the applicant and McKechnie, so that the applicant and McKechnie each faced six charges, consisting of three charges of sexual penetration of a child under 16 years, and three charges of engaging in an indecent act with a child under the age of 16 years arising from the incident.

After McKechnie pleaded guilty to one charge of engaging in an indecent act with a child under the age of 16 years, the prosecution withdrew the other five charges against her. As a consequence, the prosecution formed the view that it would be unfair to the applicant, if he were to face those five charges, which had been withdrawn against McKechnie. Accordingly, a fresh indictment was filed over against the applicant, containing only one charge relating to the incident in question, namely, charge 4. At the same time, the prosecutor entered into an agreement with counsel, who was then acting for the applicant, that no question would be led in chief, and no cross-examination would be undertaken, concerning the allegations made by the complainant concerning what occurred after Ms McKechnie had washed off the cream under the shower, and which were the subject of the five charges that had been withdrawn. Accordingly, the VARE interviews and the special hearing, in which the complainant had been cross-examined, were to be edited, to remove from Ms McKechnie’s evidence any reference to those matters.

Subsequent to the parties entering into that agreement, the trial was delayed. When the trial was refixed for hearing, new counsel was briefed to appear for the applicant. In a pre-trial ‘Basha’ hearing in respect of the evidence of McKechnie, counsel for the applicant put to Ms McKechnie the allegations that had been made by the complainant as to the sexual acts that had taken place after McKechnie had the shower on the evening of the ‘whipped cream incident’. Ms McKechnie denied each of those allegations. As a result, at the conclusion of that hearing, the prosecutor raised with the judge that she would seek leave to cross-examine Ms McKechnie, under s 38 of the Evidence Act, at the trial of the proceeding, in relation to those matters.

Subsequently, a further special hearing was held in relation to the evidence to be given by the complainant. At that special hearing, counsel for the applicant specifically put to the complainant the allegations, which she had made concerning the sexual acts that took place after Ms McKechnie had a shower, and he put to her the denials of those allegations made by Ms McKechnie.

At the completion of the special hearing, the prosecutor renewed her application for leave to cross-examine Ms McKechnie at the trial, in relation to those matters, pursuant to s 38 of the Evidence Act. The prosecutor sought a preliminary ruling from the judge, on the basis that counsel for the applicant had made it plain that he did not intend to adhere to the previous agreement reached between the prosecutor and the former counsel for the applicant, and that he intended to cross-examine Ms McKechnie in relation to the post-shower matters. Counsel for the applicant did not oppose the judge giving a preliminary ruling in relation to the application made by the prosecutor.

The parties then proceeded to present their arguments in relation to the application by the prosecutor to cross-examine Ms McKechnie. The prosecutor submitted that defence counsel had departed from the previous agreement, that had been reached with former counsel, for a forensic purpose, namely, to undermine the credibility of the complainant, by eliciting evidence from Ms McKechnie that, apart from the ‘whipped cream’ incident that was the subject of charge 4, no other sexual activity occurred between the applicant, the complainant and herself on that evening or on any other occasion. The prosecutor submitted that, at the conclusion of the trial, she would be putting to the jury that it should prefer the evidence of the complainant to that of McKechnie on that issue. She therefore argued that it was necessary for her to cross-examine Ms McKechnie concerning those matters in order to comply with the requirements of the Browne v Dunn[3] rule.
[3](1893) 6 R 67.

In response, counsel for the applicant contended that leave should not be granted to the prosecutor to cross-examine Ms McKechnie, because the matters, to which such cross-examination was to be directed, were not matters in respect of which the applicant was charged. Counsel contended that the aspects of the evidence of Ms McKechnie, which were unfavourable to the prosecution, related to charges that had been discontinued against the applicant, and thus it was inappropriate that leave be given to the prosecutor to cross-examine Ms McKechnie about them.

In a thorough and methodical ruling, the judge set out the background to the prosecutor’s application that we have just described. His Honour noted that Ms Smith was under subpoena issued on behalf of the applicant to give evidence in the course of the trial to the effect that, despite the allegations of the complainant, no sexual activity took place between the complainant and the applicant in her presence. Accordingly, the judge noted:

It is plain that (counsel for the applicant) will seek to pit, as it were, the evidence of both Ms McKechnie and Ms Smith against the evidence of the complainant … proving that the events said to have occurred in the presence of either of those two women did not occur save in relation to Ms McKechnie and the indecent act (that was the subject of charge 4).

His Honour observed that the prosecutor had made it plain that, if counsel for the applicant did not intend to pursue the matters that were not the subject of charge 4, she would not adduce any evidence in relation to them. His Honour noted that the stance taken by the prosecution had given the defence the benefit of the previous agreement being maintained. However, counsel for the applicant had made a forensic decision to reverse the original agreement between former counsel and the prosecution. Thus, his Honour concluded, the evidence of Ms McKechnie, denying the other sexual activity apart from that which was the subject of charge 4, would be unfavourable to the prosecution. He noted that the foreshadowed cross-examination would be confined to putting the prosecution case to Ms McKechnie, as the prosecution was required to do. The judge concluded that no unfair harm would be done to the applicant as a result of such a process. On the other hand, a fair trial involved fairness to the prosecution in the manner in which it presented its case. Accordingly, the judge concluded that Ms McKechnie was an unfavourable witness, and his Honour gave the prosecutor leave to cross-examine Ms McKechnie in relation to those matters.

Ms McKechnie was called to give evidence in the trial. After she had described the events, that were the subject of charge 4, the prosecutor sought leave to cross-examine her in relation to the uncharged acts. Counsel for the applicant formally objected to such leave. The judge having granted that leave, the prosecutor put to Ms McKechnie, by a series of questions, the events described by the complainant that took place after Ms McKechnie had had her shower. Ms McKechnie denied each of those allegations. Subsequently, in cross-examination, counsel for the applicant, having referred to the fact that Ms McKechnie had originally faced six charges relating to the evening in question, put to Ms McKechnie the specific allegations contained in each five charges that were subsequently withdrawn. In response, Ms McKechnie denied each of those allegations.

Ground 1 ― Submissions

In support of ground 1, counsel for the applicant noted that when the prosecution filed a new indictment in respect of McKechnie, containing only one charge, the other charges, relating to the incident in question, were discontinued pursuant to s 177(1) of the Criminal Procedure Act 2009. Counsel submitted that accordingly McKechnie should not have been declared to be an unfavourable witness, because the only aspect of her evidence, that differed from the prosecution case, was that which was concerned with the ‘discontinued’ charges. Accordingly, it was submitted, the effect of the judge’s ruling was to elevate those discontinued charges into ‘uncharged acts’, thus giving them a greater ‘status’ than they were entitled to have. Counsel contended that the evidence, relating to the discontinued charges, was not led by the prosecution, for the purposes of general context or relationship evidence, but, rather, for an impermissible tactical purpose, namely, in order to undermine that cross-examination of the complainant and of the witness McKechnie by counsel for the accused.

In response, counsel for the respondent noted that it was counsel for the applicant at trial, who made the forensic decision to introduce evidence concerning the allegations made by the complainant as to the uncharged conduct involving Ms McKechnie. Counsel submitted that the judge was therefore correct to give leave to the prosecutor to cross-examine Ms McKechnie concerning that uncharged conduct, since the evidence of Ms McKechnie, relating to those matters, had the capacity to substantially undermine the credibility of the complainant in respect of the circumstances that were the subject of the charges.

Ground 1 ― Analysis

It is correct, as counsel for the applicant has pointed out, that the effect of the judge’s ruling was to permit the prosecutor to cross-examine a Crown witness in relation to conduct alleged against the applicant and the witness that was not, of itself, the subject of a specific charge on the indictment. Ordinarily, it would be unusual for leave to be given to a prosecutor, under s 38 of the Evidence Act, to cross-examine a witness about such a matter. However, in the present case the situation was different for two reasons.

First, it was counsel for the applicant, at trial, who chose, for a clear tactical purpose, to introduce and agitate the topic relating to those uncharged acts. In particular, it was counsel for the applicant who adduced evidence that the complainant had alleged that the applicant and McKechnie had engaged in those uncharged acts, and it was counsel for the applicant who had specifically sought to put in issue the truthfulness of those allegations.

Before the jury was empanelled, counsel for the applicant cross-examined McKechnie, at the Basha hearing, relating to those matters, and in doing so he made it plain to the prosecutor that he intended to raise them as an issue in the trial. Further, and importantly, at the second special hearing in which the complainant was cross-examined, counsel for the applicant specifically put to the complainant, in a series of questions, each of the allegations that she had made concerning the conduct of the applicant and McKechnie that occurred on the same evening as, and after, the incident that was the subject of charge 4. Counsel’s questions consisted, first, of putting to the complainant that she had made the allegation, secondly, of putting to her that the particular alleged conduct had not occurred, and, thirdly, of putting to her that Ms McKechnie had said that the conduct had not occurred. In addition, counsel also put to the complainant that she had also accused Ms McKechnie of sexually interfering with her a couple of times a week during her relationship with the applicant. The purpose of the special hearing was to enable counsel to cross-examine the complainant on those matters, so that that additional part of the complainant’s evidence concerning them would form part of her evidence in the trial. Thus, by the time Ms McKechnie gave evidence at the trial, counsel for the applicant had introduced the allegations as to the ‘uncharged acts’ into evidence, and had put to the complainant the denials by Ms McKechnie that those acts had taken place.

The second, and related point, is that the matters, that were raised by counsel for the applicant, were not, in the context of the case, peripheral or collateral issues in the trial for two reasons. First, the conduct, that the complainant alleged that the applicant and McKechnie had engaged in in that respect, occurred almost immediately after the incident that was the subject of charge 4. In a real sense, that ‘uncharged’ conduct formed part of the incident, in which the conduct, that was the subject of charge 4, occurred. Secondly, the matters raised by counsel for the applicant in relation to the uncharged conduct, formed part of a substantial attack made by the defence at trial on the evidence given by the complainant concerning the offences charged against the applicant, and, in particular, the offence that he was alleged to have committed in company with McKechnie (that was the subject of charge 4), and the offences that he was alleged to have committed in company with Jenni Smith (that were the subject of charges 5 to 9). The thrust of the defence case, in that respect, was to endeavour to portray the complainant as a person who made untrue allegations of sexual abuse against the applicant, and, in particular, of sexual abuse perpetrated by the applicant in company with one or other of his then girlfriends. That line of attack was important to the applicant’s case, and to the overall outcome of the charges against the applicant. If the jury accepted that the complainant’s allegations as to the uncharged acts against McKechnie were untrue, that would significantly damage the credibility of the evidence given by the complainant, particularly in relation to charge 4 and charges 5 to 9, but also more generally.

That conclusion is reinforced by the submissions made by counsel for the applicant in relation to that issue in his final address to the jury. In that address, counsel noted that although Ms McKechnie had been charged with the other offences, those charges had been dropped by the prosecution. Counsel then observed that the prosecution was maintaining to the jury that Ms McKechnie was not telling the truth about those matters, while at the same time saying that it was not going to pursue them against Ms McKechnie.

At a later stage in his address, counsel for the applicant put to the jury that the allegations, that the complainant had made against Ms McKechnie and against Ms Smith, had a significant similarity about them. He noted that the two females were not known to each other, and that they each vehemently denied what had occurred. He stated:

So you’ve got two adults, females, and nobody suggested that they are people who are untruthful. Nobody suggested that they are people who tell lies. Never put to them that they are ― it was put to them that they were lying about this, but unlike [the complainant], who admits she’s a liar, both these women say with unshakeable certainty these events did not happen.

Counsel concluded that part of his submission by reminding the jury that there were no charges against Ms McKechnie in respect of the conduct alleged by the complainant, and that the charges relating to that alleged conduct had been dropped. He submitted that those matters should create a doubt in their mind about the veracity of the complainant, so that it was the duty of the jury to acquit the applicant on each charge.

In that way, the evidence concerning the uncharged conduct involving Ms McKechnie, and the issue of the truthfulness of the evidence given by the complainant (in cross-examination) about that matter, was not only introduced into the trial by counsel for the applicant, but, in addition, counsel for the applicant endeavoured to exploit it as a significant issue in the resolution of the charges against the applicant. It is in that context that it is necessary to determine the question, raised by the first ground of appeal, whether the trial judge was correct to give leave to the prosecutor to cross-examine Ms McKechnie, pursuant to s 38 of the Evidence Act, in relation to that matter.

Section 38(1)(a) of the Evidence Act entitles a party, who has called a witness, to apply for leave to cross-examine that witness about evidence ‘given by the witness that is unfavourable to the party’. In the present case, Ms McKechnie had not, in the course of the trial before the jury, yet given evidence that was unfavourable to the prosecution. However, as noted, the parties had sought a preliminary ruling from the judge in relation to that issue, which, in the circumstances of a case such as this, was quite appropriate.[4]
[4]Cf Adam v The Queen (2001) 207 CLR 96, 105–109 [24]–[38] (Gleeson CJ, McHugh, Kirby and Hayne JJ); R v Kennedy [2000] NSWCCA 487; KH v The Queen [2014] NSWCCA 294, [16], [28] (Leeming JA).

As discussed, the topic of the allegations by the complainant concerning the uncharged acts had already been canvassed by counsel for the applicant in cross-examination of the complainant. It is well accepted that the word ‘unfavourable’ in s 38(1)(a) means ‘not favourable’.[5] In the present case, it was clear from the Basha inquiry, that McKechnie would give evidence, and, when she was cross-examined before the jury, she did give evidence, that was unfavourable, or not favourable, to the prosecution case, in that she contradicted the evidence of the complainant, as to the happening of the uncharged acts. In the context in which that aspect of the evidence was introduced by counsel for the applicant at trial, Ms McKechnie’s evidence (when given) was unfavourable to the prosecution on an issue, which, as we have discussed, was of substantial importance to the assessment by the jury of the evidence of the complainant as to the conduct alleged against the applicant that was the subject of each of the charges, and, in particular, charge 4 and charges 5 to 9.
[5]R v Souleyman (1996) 40 NSWLR 712, 715 (Smart J); Kanaan v The Queen [2006] NSWCCA 109 (‘Kanaan’) [83] (Hunt AJA, Buddin and Hoeben JJ); DPP (Vic) v Garrett [2016] 257 A Crim R 509 [66]–[67] (Maxwell P, Redlich and Beach JJA); Saddik v The Queen [2018] VSCA 249 (‘Saddik’) [86] (Kaye and Niall JJA).

In those circumstances, as a consequence of the approach taken by counsel for the applicant to the uncharged conduct, the prosecutor was in a position in which she needed to contend, in her final address, that the jury should not accept the evidence of Ms McKechnie relating to that conduct, but that it should accept the evidence of the complainant in respect of it.

The prosecution is not obliged to accept the evidence given by each witness called by it.[6] However, since the introduction of the Evidence Act, it has been recognised that where a prosecutor, in address, seeks to go beyond such a submission, then, before doing so, the prosecutor is ordinarily obliged to seek leave to cross-examine the particular witness, in fairness both to the witness and to the accused, in compliance with the rule in Browne v Dunn.[7] In the present case, in the circumstances in which Ms McKechnie gave evidence in the trial, that principle required that the prosecutor seek such leave, in order to be able to properly address the jury as to the aspects of Ms McKechnie’s evidence that contradicted the evidence of the complainant.
[6]R v White (2003) 140 A Crim R 63, [65]–[68].
[7]See Kanaan [2006] NSWCCA 109 [83]–[96]; Saddik [2018] VSCA 249 [90]–[92].

That proposition is borne out by the matters that were put to the jury, by the prosecutor, in her final address concerning Ms McKechnie’s evidence. Having submitted to the jury that it ought to accept Ms McKechnie’s evidence relating to charge 4, the prosecutor invited the jury to reject Ms McKechnie’s denials of the other conduct that the complainant said had occurred after the shower. The prosecutor noted that the relationship between the applicant and Ms McKechnie had continued after the incident that was the subject of charge 4, and that, indeed, at a date subsequent to that incident, the applicant had moved into Ms McKechnie’s home. The prosecutor put to the jury that if the incident, that was the subject of charge 4, was a ‘one off’ event, the jury might consider that Ms McKechnie would have had nothing further to do with the applicant. Thus, the prosecutor submitted that the fact that Ms McKechnie remained in the relationship with the applicant supported the evidence of the complainant, that was adduced in the course of cross-examination, that there had been ongoing abuse of her by the applicant in company with Ms McKechnie.

In order to be able to make those submissions to the jury, it was requisite that the prosecutor first have leave to cross-examine Ms McKechnie, as a matter of fairness, both to Ms McKechnie, and also to the applicant. In the context of the trial, it would not have been appropriate for the prosecutor, in her final address, to seek to impugn the evidence of Ms McKechnie, as to her denials of the uncharged conduct, without the witness having the opportunity to respond to relevant questions by the prosecutor relating to them.

In considering whether to grant leave under s 38, a judge is required to consider the matters specified in s 38(6) and s 192(2) of the Act. In particular, in a criminal trial, an important consideration is the extent to which the grant of leave would be unfair to a party or to a witness.

In the present case, the questions, that were put by the prosecutor to Ms McKechnie, were confined and precise. The prosecutor put to Ms McKechnie, in a series of questions, each of the acts of conduct that the complainant had alleged that McKechnie and the applicant engaged in after McKechnie had had her shower. The prosecutor also put to her, in a short question, that it was not unusual for Ms McKechnie to be involved with the applicant in other sexual activity perpetrated against the complainant. The cross-examination, thus permitted to the prosecutor, and undertaken by her, was confined and temperate. It is not possible to perceive how it could have occasioned any unfairness to the applicant or to the witness.

It has not been suggested that there was anything unfair about the timing of the cross-examination of Ms McKechnie by the prosecutor. The authorities have made it plain that ordinarily any cross-examination, under s 38 of the Evidence Act, should be undertaken by the party which called the witness, before the witness is cross-examined by counsel for the other side. Accordingly, it was correct for the prosecutor to have leave to put the questions to Ms McKechnie in cross-examination, before counsel for the applicant had embarked on cross-examination of McKechnie, rather than after that cross-examination had taken place.[8]
[8]See, eg, Burrell v The Queen (2007) 190 A Crim R 148, 202–3 [237]; Meyer v The Queen [2018] VSCA 140 [182]–[188] (Priest and Kaye JJA).

It was submitted on behalf of the applicant that the cross-examination of Ms McKechnie by the prosecutor had the effect of elevating the matters, the subject of the cross-examination into ‘uncharged acts’. However, it was counsel for the applicant who had introduced the topic, in cross-examination of the complainant, for a particular forensic purpose. Before the commencement of the trial, the prosecutor had made it clear that she did not intend to lead the evidence relating to the ‘uncharged conduct’, nor to enter into that topic, if the defence were to desist from entering into it. The position so taken by the prosecutor was entirely appropriate. It was the choice made by counsel for the applicant to cross-examine the complainant, and Ms McKechnie on the Basha, about the uncharged conduct, that had the effect of introducing that topic into the case. In those circumstances, it was appropriate for the prosecutor to be granted leave to cross-examine Ms McKechnie about those matters, in order that she could properly and fairly make submissions about them in final address in anticipation of the submissions that were to be made by counsel for the defence in relation to that issue.

For those reasons, we consider that ground 1 is not made out.

Ground 2

Ground 2 asserts that the verdicts of the jury are ‘unsafe and unsatisfactory’, or, to use the language of s 276(1)(a) of the Criminal Procedure Act 2009, ‘unreasonable or cannot be supported having regard to the evidence’. The ground contains 14 particulars (numbered (a) to (o)) which can be conveniently summarised and considered under eight categories, namely:

(1)The jury took seven days to reach the verdicts, in circumstances in which the only issue was the credibility of the complainant. The trial judge gave a ‘Black’ direction after five days of deliberation.
(2)Apart from charge 4, the complainant’s evidence received no support from any other witness; and, on charge 4, there was ‘considerable conflict’ as to the circumstances surrounding the complainant’s description of the events.
(3)On her own admission, the complainant admitted to telling lies, and she had been described by her parents as a ‘liar’ when confronted with her allegations.
(4)Ms McKechnie strongly denied the allegations made by the complainant as to sexual offending, which were the subject of charges that have been discontinued by the prosecution. Jenni Smith, who was a co-accused in relation to charges 5 to 9 on the indictment, also vehemently denied involvement in the sexual offending alleged by the prosecution. Both Ms McKechnie and Ms Smith were recollecting events that took place when they were each an adult. On the other hand the complainant was a child, who was no older than 12 years of age at the time of the last event.
(5)Both Ms McKechnie and Ms Smith supported, in large measure, the inability of the applicant to perform sexually. The complainant’s mother also understood that the applicant was unable to perform sexually. The medical evidence called on behalf of the applicant supported his denial that he could perform sexually as alleged by the complainant. In light of the applicant’s medical condition, it was inherently improbable that, as alleged by the complainant, he regularly raped her on a weekly basis, and performed four acts of penile penetration on the one occasion which was the subject of charges 5, 6, 7 and 8.
(6)There was a major contradiction between the account given by the complainant in the first VARE statement of 17 November 2013, in which she did not make any allegation against Ms McKechnie or Ms Smith, and the account given by her in the second VARE statement dated 24 July 2014. That contradiction is more significant because the complainant asserted that the last occasion, on which she was the subject of sexual abuse by the applicant, was the event that was the subject of charges 5 to 9, in which she alleged that Ms Smith participated.
(7)There were a number of other inconsistencies between the complainant’s first VARE and her second VARE. In the first VARE, the complainant alleged that her mother was the first person who she told about the abuse; but in the second VARE, she said that she first mentioned it to her friend Brooke Fox. In the first VARE, she said that she had complained to her mother while watching Neighbours in the lounge room, and in which she saw a scene that she described as ‘a sister feeling up her brother’. In the second VARE, her description of the scene on television was of a ‘rape’, and the discussion with her mother took place in the kitchen. In the first VARE, the complainant alleged that the applicant put his fingers in her ‘butt’ two or three times, but she made no such allegation in the second VARE.
(8)In both records of interview, the applicant denied the allegations made by the complainant.

In response, counsel for the respondent submitted that the verdicts of the jury were not unreasonable, and they were supported by the evidence. The cumulative effect of the evidence was such that it was open to the jury to return a verdict of guilty on each of the charges. In particular, it was submitted, the evidence did not oblige the jury to entertain a reasonable doubt about the guilt of the applicant on any of the charges.

Counsel for the respondent addressed each of the ‘particulars’ relied on by the applicant in support of ground 2. He submitted that the fact that the jury took seven days to reach its verdict demonstrated that the jury carefully assessed the evidence of the complainant before determining what parts of that evidence it would accept beyond reasonable doubt. Counsel further noted that while, with the exception of ground 4, there was an absence of supporting evidence, nevertheless it was open to the jury to be satisfied beyond reasonable doubt of the evidence of the complainant that established each of the other charges. Although the complainant’s evidence was not perfect, nevertheless she gave clear and cohesive evidence that the applicant had offended against her in the manner alleged in the charges.

Counsel described as unmeritorious the proposition, advanced on behalf of the applicant, that the recollections of Ms McKechnie and Ms Smith ought to be preferred to that of the complainant, because they were adults at the time of the events with which the case is concerned, and the complainant was then a child. The fact that those witnesses supported the applicant’s denials did not add much to the defence, since each of them were also alleged to have been involved in sexual offending against the complainant, and therefore they had a motive to lie about those events. The fact that the five charges, originally brought against McKechnie, were not proceeded with, did not diminish the evidence of the complainant in relation to those matters.

Counsel further submitted that the medical evidence called on behalf of the applicant, concerning his medical condition, did not oblige the jury to have a reasonable doubt about the offending alleged by the complainant. Although that evidence might have cast some doubt on the complainant’s recollection as to the regularity of the uncharged acts committed against her, it was not such as to preclude a finding by the jury, beyond reasonable doubt, that the applicant had engaged in the sexual abuse of her that was alleged in each of the nine charges. Further, counsel contended, the denials made by the applicant, in the two records of interview, did not advance the proposition that the verdicts were unreasonable or unsupported by the evidence. It is not unusual for an accused person, who has pleaded not guilty, to have made denials in the interview conducted on that person. It was a matter for the jury to assess the denials, and the quality of them.

Analysis and conclusions

As noted, the ground of appeal, relied on by the applicant, is based on s 276(1)(a) of the Criminal Procedure Act 2009 (Vic), which provides that the Court must allow an appeal if it is satisfied that the particular verdict of the jury ‘is unreasonable or cannot be supported having regard to the evidence’.

The principles, that are applicable to that ground of appeal, have been restated by the High Court on a number of occasions during the last two decades since its decision in M v The Queen.[9] In Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) stated the test in the following terms:

But the question for an appellate court is whether it was ‘open’ to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury ‘must’, as distinct from might have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[10]

[9](1994) 181 CLR 487.

[10]Ibid 596–7. See also SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ).

In R v Klamo,[11] this Court summarised the relevant principles 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.[12]

[11](2008) 18 VR 644. See also Badem v The Queen [2016] VSCA 200 [40]–[47] (Warren CJ, Weinberg and Priest JJA).

[12]Ibid 653–4 [38] (Maxwell P, Vincent and Neave JJA). See also O’Reilly v The Queen [2015] VSCA 19 [22]; Meade v The Queen [2015] VSCA 171 [11].

In its recent decision in R v Baden-Clay,[13] the High Court emphasised the stringent nature of the test which is applicable to the ground relied on by the applicant. The 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.[14]

[13](2016) 258 CLR 308.

[14]Ibid 329 [65].

Consistently with those principles, the assessment of the evidence of the complainant, and her veracity, was very much a matter for the jury, and not for this Court. While, in the circumstances of this case, the Court is in a similar position to the jury in being able to view the two VARE interviews and two special hearings in which the complainant participated, nevertheless it was primarily the role of the jury to determine the issues of fact that were fundamental to the resolution of the charges.

Certainly, the prosecution case was dependent, in large measure, on the evidence of the complainant. However, there was some relevant support for her evidence that was independent of her. In particular, her evidence, in respect of the conduct alleged in charge 4, was supported by Ms McKechnie. As counsel for the applicant has pointed out, there were a number of differences between the accounts given by the applicant and by Ms McKechnie in respect of that incident. Nevertheless, their evidence was basically consistent on the essential features of the incident which were the basis of the charge against the applicant.

The support, provided by Ms McKechnie, to the evidence of the complainant on charge 4, was significant in the context of the case. In particular, it buttressed the credibility of the complainant in respect of the allegations made by her, first, that the applicant had been involved in sexual activity with her, and, secondly, that, in doing so, he had included an adult female in the offending conduct. The prosecution did not rely on the conduct, alleged in charge 4, or on any other conduct, as tendency evidence under s 97 of the Evidence Act, or as coincidence evidence under s 98. However, the evidence of Ms McKechnie did demonstrate that the complainant was not engaging in an exercise of fabrication or fantasy in alleging that the conduct, that was the subject of charge 4, had occurred. In that way, it provided relevant and important support for the credibility of the complainant, not only in respect of that charge, but more generally. In addition, as context evidence, the conduct of the applicant, in engaging in charge 4, was capable of being used by the jury as depicting an aspect of the relationship between the applicant and the complainant, and, in particular, as demonstrating that the complainant was so familiar with sexual conduct of the applicant that she was prepared to submit to the involvement of an adult female in that conduct.

In that context, the evidence of the complainant, as to the uncharged acts that took place on the same evening as the conduct that constituted charge 4, was also relevant. It was open to the jury to prefer the evidence of the complainant, to that of Ms McKechnie, in respect of the involvement by both the applicant and Ms McKechnie in that conduct. Ms McKechnie had pleaded guilty to a criminal offence involving the commission by her of an indecent act with the complainant when the latter was 8 years of age on the same evening. In her evidence in the trial, Ms McKechnie did not advance any reason or explanation why she had been prepared to participate in the indecent act with the complainant, which was the basis of the charge to which she had pleaded guilty. The jury was aware that, as a result of her guilty plea, the prosecution had withdrawn the other five charges against her. Thus, it was understandable that Ms McKechnie would deny involvement in the acts that were the subject of those charges, irrespective of whether the complainant’s evidence about them was true or not. Those uncharged acts, if accepted by the jury, constituted further context to the relationship between the applicant and the complainant, by demonstrating the degree of familiarity of the complainant in respect of sexual conduct by the applicant towards her.

The evidence by the complainant about being prevailed upon by the applicant to wear a corset, and to be photographed wearing it, was also relevant as context evidence. There were some differences between the complainant’s description of the corset, and the garment that was found by the police and tendered in evidence. However, it is significant that the complainant was not only aware that the applicant had a corset in the bungalow, but that she was sufficiently familiar with it to be able to describe how such a garment fitted on her. When the police searched the premises, they found the corset in a metal tin that was locked. The fact that the complainant gave evidence, that she had seen and worn such a garment at the bungalow, added further to the force of the context evidence, by reinforcing the overall sexualised nature of the relationship between the applicant and the complainant in the bungalow.

In addition, the complainant’s mother, and three of her school friends, gave evidence as to complaints that she had made to each of them concerning sexual abuse of her by the applicant. The jury were entitled to take those accounts into account as supportive of the credibility of the complainant.

Further, the circumstances in which the matter came to the attention of the police were capable of being regarded by the jury as adding further support to her credibility. The evidence of the complainant’s friends was that, during that period, the complainant was experiencing some emotional difficulties. It is evident, from the transcript of the web conversation, that the complainant had with the Kids Helpline that she contacted on 6 November 2013, that the purpose of her contact was not to report the conduct of the applicant, but, rather, to seek assistance for her emotional difficulties. In other words, the jury was entitled to take into account, in support of the complainant’s credibility, that she did not set out to implicate the applicant in the offending that is alleged in the charges.

Pausing there, each of the matters that we have so far discussed provide cogent support for the verdicts of the jury. The question, then, is whether the matters, raised on behalf of the applicant in support of ground 2, are such that, nevertheless, it should be concluded that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on each of the charges.

We turn, then, to the eight matters on the basis of which counsel for the applicant submitted that the verdicts of the jury were unsafe and unsatisfactory.

The first circumstance concerned the length of the jury deliberations. The jury retired to consider its verdicts at 3:55pm on Tuesday 24 October 2017. However, it did not deliberate on that day, as the Court was then adjourned two minutes later. The jury then deliberated for the whole of the ensuing six days, namely, Wednesday 25 October to Wednesday 1 November. During that period, on Thursday 26 October, the jury requested, and was provided with, a copy of the judge’s charge. On Monday 31 October, the jury asked two questions concerning whether it was entitled to deliver majority verdicts on some of the charges. After consulting with counsel, the judge did not answer those questions, but, instead, gave the jury the perseverance direction prescribed by the High Court in Black v The Queen.[15] On Wednesday 1 November, at 2:24pm, the judge asked the jury a specific question, namely, whether it was making progress, to which the forelady responded ‘Yes’. On Thursday 2 November, at 11:53pm, the jury returned its verdicts.
[15](1993) 179 CLR 44, 51–2.

We accept that the jury deliberations in this case took longer than usual in cases of this type. However, it is the experience of the courts that, while some juries deliberate over a relatively short time, other juries engage in more lengthy deliberations. In the present case, the jury was required to deal with each of the nine charges against the applicant. There were a number of credit issues in the case, not only concerning the evidence of the complainant, but also concerning the evidence of Ms Smith and Ms McKechnie. The jury had, as exhibits, the two VARE interviews with the complainant, the VARE interview of her sister SD, and the recordings of each of the four complaint witnesses. In addition, it had the disc recordings, and transcripts, of the two interviews conducted by police with the applicant. In those circumstances, the fact that the deliberations took place over a period in excess of six days does not reflect on the question whether, based on the evidence in the case, the jury must have entertained a reasonable doubt about the guilt of the accused on any of the charges. Rather, that period of deliberation does no more than reflect the fact that the jury, no doubt cognisant of the importance of its task, engaged in a thorough and careful review of the evidence.

The second circumstance, relied on by the applicant, is that the complainant’s evidence received no support apart from charge 4, and on that charge there were differences between the complainant’s account and the account given by Ms McKechnie. We have already discussed that aspect of the prosecution case. While there was no other direct support for the complainant’s evidence, nevertheless, as we have noted, the support given to the complainant’s credibility by the evidence of Ms McKechnie, in respect of the conduct that was the subject of charge 4, was potentially significant. The complainant’s credibility was also supported by the complaints that she made to her mother and friends, and by the manner and circumstances in which she first sought help from the Kids Helpline.

The third matter, relied on by the applicant, is that in the special hearing that was conducted in August 2016, the complainant accepted that she had told lies previously. That point is, we consider, inconsequential. In cross-examination at the special hearing, the complainant agreed that when she made the complaint of abuse to her mother, she untruthfully told her mother that the abuse had stopped, when it had not done so. She explained that she had told that lie, because she did not wish to burden her mother with the responsibility of confronting the applicant.

It was also put, on behalf of the applicant, that the complainant’s mother said that the complainant was given to lying. However, as earlier mentioned, the complainant’s mother merely said that, when the complainant made the complaint to her of the abuse, she did not believe it, because, like any other teenager the same age, the applicant was given to telling lies. That evidence hardly reflects on the issue whether, in participating in the two VARE statements and the two special hearings, the complainant had deliberately told significant lies in respect of the serious charges that have been brought against the applicant.

In that context, counsel for the applicant also relied on the evidence of the complainant’s mother that during the time in which the applicant lived in the main house and in the bungalow, she did not have any concern that her children were in danger of being abused by him. However, TD did not describe what supervision, if any, she exercised in respect of her children concerning their visits to the bungalow. Indeed, while she did not have any recollection of the complainant sleeping in the bungalow for the majority of the week, nevertheless she could not say whether the complainant had been out at the bungalow, because she (TD) had slept in the front bedroom of the house. In addition, as already noted, in re-examination, TD said that the reason she did not have concerns that her children were in any danger of abuse by the applicant was because he had told her he was impotent, because he was her brother, and because she herself could not comprehend how an adult could bring himself to sexually abuse a child.

In respect of the fourth point relied on by the applicant, we agree with the submission made on behalf of the respondent that the fact, that Ms McKechnie and Ms Smith were recollecting events that took place when they were each an adult, did not, of itself, render their evidence more truthful or reliable.

The fifth point, advanced on behalf of the applicant, concerned the inability of the applicant to perform sexually. In particular, counsel for the applicant contended that the evidence of Ms McKechnie, Ms Smith and Dr Chapman each supported the applicant’s denial that he could perform sexually in the manner alleged by the complainant, which, in turn, made it inherently improbable that the applicant had engaged in the conduct that was the subject of each of the charges against him.

In each of the two records of interview, the applicant, in some detail, emphasised the fact that he was impotent. In particular, and relevantly, the applicant told the police, in each interview, that he had no capacity at all to have or maintain an erection. In the first interview, on 7 November 2013, he told the police that during the last ten years he had not been able to ‘get or maintain an erection’ because of the effect of his diabetes (questions 67 to 69). Later in the interview, when the police put to the applicant some of the allegations made by the complainant, the applicant responded ‘I’ve never had intercourse with her, I couldn’t have intercourse with her even if I wanted to because I’m impotent’ (question 145). He then repeated that he had been ‘impotent for about ten years’ (question 148).

In the second interview, conducted on 22 October 2014, the applicant again emphasised the fact that he was totally impotent. When asked about his relationship with Ms McKechnie, he said ‘As I told you before I’ve been impotent for about ten years now, so there was no sexual relationship there. It was just companionship …’ (question 69). He denied that the relationship was intimate, and he said that it was a relationship of friends and companionship (question 75). When asked whether he had ever attempted intimacy with Ms McKechnie, the applicant stated ‘No, I knew it wasn’t possible, that’s why I didn’t want to get involved in it in the first place’. He agreed with the proposition, put by the police, that impotence meant that he ‘cannot have an erection’ (question 79, 80). Later in the interview, he said that the impotence had begun in his late 20s, but when he was 34 or 35 years of age it was ‘when it really kicked in’. When asked whether there were times when he could have a ‘partial erection’, the applicant responded ‘No, no’ (questions 288–291).

Importantly, in that context, Ms McKechnie did not provide support for the degree of lack of sexual capacity asserted, repeatedly, by the applicant in his interview with the police. As we have noted, Ms McKechnie in her evidence stated that, while the applicant did not have full erectile function, nevertheless he had sufficient capacity to have engaged in sexual intercourse with her on approximately 20 occasions during their 16 month relationship. When those answers were put to Dr Chapman, he made the point that his diagnosis of erectile dysfunction did not mean that the applicant had no function or capacity at all in that respect. Further, and significantly, the substantial quantity of medical records, that were examined by Dr Chapman, did not have any notation or mention at all of any erectile dysfunction, and the only possible relevant reference to it was a brief mention of a suggested script for Sildenafil, which the applicant had declined.

Ms Smith gave evidence that the friendship, that she had with the applicant, did not develop into a sexual relationship, but she said that it did not do so because the applicant was unable to ‘keep an erection’. In cross-examination, Ms Smith, while denying having any sexual relationship with the applicant, did make some concessions, to which we have already referred. Further, the jury could be entitled to view Ms Smith’s evidence with a degree of reservation, given that the charges against her were still outstanding, and that it was in her interest to maintain that her relationship with the applicant did not have any sexual aspect to it.

Accordingly, contrary to the submissions of counsel for the applicant, the evidence, taken as a whole, did not provide any firm support for the applicant’s repeated assertion, in his interview, that he lacked any capacity to have an erection. Further, and importantly, the evidence of Ms McKechnie contradicted the applicant’s assertion in that respect to a significant degree. We shall return to that aspect of the evidence when dealing with the eighth point relied on by counsel for the applicant in respect of ground 2.

The sixth point, relied on by counsel for the applicant in support of ground 2, was that the complainant did not make any allegation against Ms McKechnie or Ms Smith in the first VARE statement of 7 November 2013, but that she did so in the second VARE statement dated 24 July 2014.

As mentioned, in cross-examination, the complainant stated that she did not say anything about Ms McKechnie, in the first VARE interview, because she did not understand that females could be involved in sexual abuse, and she did not understand that, when Ms McKechnie penetrated her with her fingers, that was a form of sexual assault. Ultimately, it was a matter for the jury whether it accepted such an explanation given by the complainant, who, at the time of the first VARE, was 13 years of age.

In that respect, the circumstances in which the first VARE interview was conducted must be taken into account. It will be recalled that the involvement of the police was precipitated by the contact that the complainant had made with the Kids Helpline on the previous evening, on 6 November 2013, in which the complainant stated that she was contemplating killing herself, or killing her uncle. When asked by the counsellor about her thoughts to kill her uncle, the complainant responded, ‘He raped me when I was 7 until I was about 12 or 11, he ruined my childhood, he deserves to die, he can’t get away with it’. The tenor of the interview, conducted with the police on the following day, 7 November, was to the same effect. The questions asked of the complainant, and the answers given by her, focused on the conduct of the applicant. In those circumstances, while, on the face of it, the omission of any reference to either Ms McKechnie or Ms Smith in the VARE interview of 7 November 2013 appears significant, it was open to the jury to consider that such an omission, in the context in which the interview took place, was not of particular importance.

The seventh matter, relied on by counsel for the applicant, concerns a number of other issues that are described as ‘inconsistencies’ between the first VARE and the second VARE interviews conducted with the complainant. In particular, there were some differences in the manner in which the complainant described the circumstances in which she made her complaint to her mother. However, those differences were, basically, inconsequential, because her evidence, that she made such a complaint to her mother, was supported by the evidence given by the latter.

The eighth matter, relied on by counsel for the applicant, was that in both records of interview, the applicant had denied the allegations made by the complainant.

Certainly, the jury was entitled to take those denials into account. However, it was not bound to accept them. In particular, there were a number of aspects of the interviews, conducted with the applicant, which could reasonably have led the jury not to have accepted the statements made by the applicant as to his innocence, and not to be persuaded by them to have a reasonable doubt about the applicant’s guilt.

The first matter concerned the applicant’s claim that at the relevant time, and for some time previously, he had no capacity at all to have or maintain an erection. As already discussed, that claim by the applicant was contradicted by the evidence of Ms McKechnie, and, in the end, not supported by the evidence of Dr Chapman.

In addition, there were a number of inconsistencies in the accounts given by the applicant, in his interviews, that were the subject of part of the address made by the prosecutor to the jury. For example, in the first record of interview, the applicant stated that he had commenced to live in the Frankston premises in late 2004 or early 2005. However, in the second record of interview, when he was confronted with allegations of having sexually penetrated the complainant when she was 5 years of age, he told the police that he was then working in Sydney and would not have been able to have been present during that period. He claimed to have returned to Melbourne, and commenced to live in Frankston, when the complainant was 8 or 9 years of age. That answer was contradicted by other evidence, namely, that the agreement to construct the bungalow was entered into in November 2006, and the evidence of Ms McKechnie that she commenced her relationship with the applicant in 2007.

There were other relevant inconsistencies in the interviews conducted with the applicant. For example, in the first interview, the applicant maintained that the complainant ‘never came out (to the bungalow) at night’. However, a series of photographs were tendered in evidence depicting the complainant on the computer in the bungalow on 11 March 2011 from 11:03pm until 11:58pm.

Taking those matters into account, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant, notwithstanding the denials by the applicant of his guilt.

In conclusion, then, as we earlier noted, apart from the matters raised on behalf of the applicant, we consider that there was sufficient support for the verdicts of the jury that it could not be concluded that those verdicts were not reasonably open to it. For the reasons that we have just discussed, we are not persuaded that, nevertheless, the matters relied on on behalf of the applicant in support of ground 2 are sufficient to disturb that conclusion. In short, we are not persuaded that the state of the evidence was such that the jury, acting reasonably, must have entertained a reasonable doubt about the guilt of the applicant.

In the course of submissions, counsel for the respondent suggested that the Court should view the evidence given by the complainant in the two VARE interviews. He submitted that the complainant had given her evidence in a convincing and plausible manner. In response, counsel for the applicant did not contend that we should view any of the recordings of the evidence given by the complainant, but he submitted (correctly) that if we were to do so, we should view, not only the two VARE interviews conducted with her, but also the recordings of the two special hearings. As we have already concluded, we are not persuaded by the submissions made on behalf of the applicant that the verdicts of the jury were unreasonable or could not be supported having regard to the evidence. As counsel for the applicant has not contended that the arguments, that he advanced on this application, would gain any greater force by a viewing of the recordings of the evidence of the applicant, we do not consider that this is an appropriate case in which we should undertake that exercise.

For reasons we have set out above, the applicant has failed to establish ground 2.

Summary of conclusions on application for leave to appeal convictions

For the foregoing reasons, the applicant has failed to establish either of the proposed grounds of appeal specified in the application for leave to appeal against conviction. Accordingly, the application for leave to appeal against conviction must be refused.

Application for leave to appeal sentence

The applicant relies on two proposed grounds of appeal against sentence:

i.The learned sentencing judge’s discretion miscarried as his Honour included as aggravating features
(a)The applicant had no regard to the consequences of his offending; and
(b)The applicant had shown no insight and no remorse for what he had done.

These factors are common to all persons who plead guilty.
ii.The sentence imposed was, in all the circumstances, manifestly excessive.

For the reasons which we will outline below, we consider that ground 1 is made out, so that leave to appeal should be granted in respect of that ground, the appeal allowed, and the applicant re-sentenced. Accordingly, it is not necessary for us to consider ground 2.

Ground 1

In thorough and carefully considered reasons for sentence, the judge outlined the circumstances of the offending in respect of each charge. His Honour appropriately noted that the depravity of the conduct engaged in by the applicant was particularly revealed in the first two charges when he sexually penetrated his niece when she was only five years of age. The judge described that depravity of the conduct of both the applicant and Smith, in the incident that comprised charges 5 and 9, as ‘breathtaking’. His Honour also noted that while evidence of other sexual misconduct had been alleged against the applicant, he was only to be sentenced in respect of the charges on which he had been found guilty. The relevance of the other sexual misconduct was that it precluded a submission being made on behalf of the applicant in mitigation of sentence that the offending, of which he was convicted, was isolated.

At para [38] of his sentence, his Honour then said the following:

I now turn to certify what I see as the aggravating features as they relate to you AE, some of which I have already referred to.
1. The victim was your niece.
2.Your offending commenced when she was but five years of age and continued for a period of about eight years until the last incident when she was 12 years of age.
3.It was your victim, your niece, who stopped your offending by being offensive, obstreperous towards you and isolating herself not only from you but also from her own family in her own home.
4.You took advantage of the generosity of your sister in taking you into her home only then to molest her daughter.
5.You used your position of trust as a brother to your sister and an uncle to your niece. To use your niece, a vulnerable young girl, as an object for your sexual gratification.
6.The offending occurred in her own home and continued in the bungalow built for your benefit in the backyard of her home.
7.Your offending was brazen as instanced by first incident, Charges 1 and 2, occurring in your bed in the main bedroom of the main house whilst other family members were present.
8.Two of your partners were involved by you to commit the offences for your sexual gratification. Charge 4 in relation to Ms McKechnie and Charges 5, 6, 7, 8 and 9 in relation to the last incident involving Ms Smith.
9.In both cases that offending, and in particular, ‘the last time she can remember’, involved acts of depravity committed against your niece.
10.You had no regard to the consequences of your offending.
11.The consequences of your offending have been profound, if not catastrophic, and will continue to be so. Your niece has no sense of security even in her own home. She even feared for the safety of her younger sister in relation to you. She has engaged in self-harm and has attempted suicides on a number of occasions, and finally;
12.You have shown no insight and have no remorse for what you did.[16]

[16]Emphasis added.

It was contended on the applicant’s behalf that his Honour mischaracterised findings 10 and 12 as ‘aggravating features’. The applicant argued that these sorts of features are present in most instances where an offender has been found guilty by a jury. Put another way both features are indicative of an absence of a mitigating factor rather than a positive factor of aggravation.

The respondent contended that in the paragraph of the reasons on which the applicant relied, the judge did not intend to use the phrase ‘aggravating features’ in their technical legal sense. Rather, he submitted that in that paragraph, the judge did no more than indicate each of the factors that negatived any submission made on behalf of the applicant in mitigation of sentence. Counsel noted that the trial judge in this case was a most experienced criminal judge who well understands the principles of sentencing and who would not, accordingly, have been using the term ‘aggravating features’ to denote factors that added to or aggravated the moral culpability of the applicant.

Notwithstanding the force of the submissions made by senior counsel for the respondent, we consider that, on a plain reading of the reasons for sentence, the judge must be understood as denoting each of the factors contained in the particular paragraph of the reasons as circumstances that aggravated the offending of the applicant. The phrase ‘aggravating features’ is a commonly employed term of art in discourse relating to the principles of sentencing. In the preceding paragraph of the reasons, the judge had specifically denoted an aspect of the case – the fact that the offending in respect of the applicant was convicted was not an isolated circumstance – as a factor that precluded a submission that could have been made in mitigation of sentence. Further, each of the first nine circumstances and the eleventh circumstance, denoted in the paragraph of the judge’s reasons in question, were clearly matters that would ordinarily be understood to aggravate the offending by the applicant. Accordingly, we accept the submission made on behalf of the applicant that the section of the judge’s reasons that are in issue must be understood as denoting factors that the judge regarded as aggravating the offending of the applicant.

It is well established that while remorse and related concepts such as concern for the welfare of a victim have been treated by sentencing courts as factors that may tend to mitigate sentence, their absence may not be regarded as constituting a feature of aggravation.[17] Callaway JA put the proposition succinctly:

[W]hilst remorse is a circumstance of mitigation, its absence is not an aggravating factor.[18]

[17]See for example Mune v The Queen [2011] VSCA 231; R v Duncan [1998] 3 VR 208; R v Kumar [2002] VSCA 139.

[18]R v Duncan [1998] 3 VR 208, 215; Mune v The Queen [2011] VSCA 231 [12]..

We are of the view that by treating these two related factors as aggravating features his Honour’s sentencing discretion has miscarried and Ground 1 has been made out. We should add that in all other respects, this very difficult sentencing exercise is a model of clarity and industry.

As it will be necessary to re-sentence the applicant it is unnecessary to consider the manifest excess ground.

Re-sentence

In his sentencing remarks his Honour set out a brief factual summary of the offending and then, correctly in our view, characterised the consequences of the offending as ‘profound’ or ‘catastrophic’:

The depravity of the conduct that you engaged in, AE, is particularly revealed in Charges 1 and 2 when you sexually penetrated your niece when she was five years of age with your penis. The depravity of the conduct of both of you[19] in the last incident is breathtaking.

[19]The co-accused were sentenced jointly.

His Honour gave significant emphasis to the sentencing principle of general deterrence describing it as ‘the primary sentencing factor …’ and stated that this offending called for stern punishment. Again, we agree with these remarks. He took into account the applicant’s excellent work history, his former good character and his declining health. His Honour accepted that imprisonment would represent a considerable burden on the applicant ‘greater than healthy persons who are in custody’. His Honour proposed a consequential ‘significant moderation of the sentence that (he) would otherwise impose’. We agree that the applicant was entitled to this moderation ― at the time of his sentence the applicant suffered from amongst other things chronic type 1 diabetes, he was legally blind, he had undergone kidney and pancreas transplant procedures, and he suffered from peripheral neuropathy leading to toe amputations and a consequent lack of mobility.

We have received an affidavit[20] from the applicant which sets out how his current medical conditions are being managed in custody. We indicated to counsel that we were prepared to receive this material in the event that we were to proceed to re-sentence the applicant. The ‘considerable burden’ that his Honour anticipated has materialised. We have also considered an affidavit from Brendan Money, Assistant Commissioner of the Sentence Management Division of Corrections Victoria.[21]
[20]Affidavit of Jesse Deacon sworn 24 September 2018.
[21]Affidavit of Brendan Francis Money sworn 2 October 2018.

The applicant has now been in custody for about 11 months. The affidavit of Mr Money set out, in some detail, the facilities that have been available and provided to the applicant by the Prison Health Service in respect of his complex medical needs. Nevertheless, notwithstanding the level of care that is being provided to him, it is clear from the materials that were provided on the plea and on this application, that as a result of the applicant’s medical conditions, a sentence of imprisonment will bear substantially more onerously on him than would otherwise be the case, even more so, in our assessment, than was apparent before his Honour at sentence. In particular, in September 2018, the Guide Dogs Association came to the conclusion that the prison conditions were unfair and unsatisfactory for the applicant’s guide dog. As a consequence, the guide dog was removed from the applicant. As a result of his near total blindness and his toe amputations, he has mobility problems and spends most of his time in his cell. His eyes are sensitive to light, and are weepy and sore. He is not permitted to wear his polarised sunglasses. His vascular and peripheral nerve damage remains as do his chronic ulcers and his right second toe is now vulnerable. He has already lost four toes. He is anxious and depressed. He feels isolated, cannot exercise, cannot read or write because of his blindness and appears to be allowed one talking book per fortnight. He cannot work, study or participate in programmes or recreational activities. Due to his visual impairment, he has been subjected to ridicule by his fellow prisoners.

Dr Webster, the applicant’s treating general practitioner, provided a report to the sentencing court.[22] He concluded that properly managed the applicant’s life expectancy could extend into his eighth decade (the applicant is now aged 49). Without proper healthcare it may be as little as a few years.
[22]Report of Dr Christopher Webster dated 2 February 2018.

The High Court has reminded us of the profound and destructive consequences to the victims of this type of offending.[23] The consequences to this particular complainant comfortably meet that characterisation and include suicide attempts, drug and alcohol abuse, homelessness, eating disorders, insomnia and social anxiety. The applicant’s offending is grave and a stern sentence must be imposed.
[23]DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37 [57] (Kiefel CJ, Bell and Keane JJ).

Taking those matters into account, we re-sentence the applicant as follows:

Charge on Indictment F13858802.2	Offence	Maximum	Sentence	Cumulation
1	Sexual Penetration of a Child Under 16 (aged under 10 years) [s 45(1) Crimes Act 1958]	25 years [s 45(2) Crimes Act 1958]	7 years	Base
2	Sexual Penetration of a Child Under 16 (aged under 10 years) [s 45(1) Crimes Act 1958]	25 years [s 45(2) Crimes Act 1958]	7 years	24 months
3	Sexual Penetration of a Child Under 16 (aged under 10 years) [s 45(1) Crimes Act 1958]	25 years [s 45(2) Crimes Act 1958]	7 years	24 months
4	Indecent Act with Child Under 16 [47(1) Crimes Act 1958]	10 years [s 47(1) Crimes Act 1958]	18 months	3 months
5	Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) [s 45(1) Crimes Act 1958]	15 years [s 45(2) Crimes Act 1958]	3 years 6 months	12 months
6	Indecent Act with Child Under 16 [47(1) Crimes Act 1958]	10 years [s 47(1) Crimes Act 1958]	1 year	3 months
7	Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) [s 45(1) Crimes Act 1958]	15 years [s 45(2) Crimes Act 1958]	3 years 6 months	12 months
8	Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) [s 45(1) Crimes Act 1958]	15 years [s 45(2) Crimes Act 1958]	3 years 6 months	12 months
9	Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) [s 45(1) Crimes Act 1958]	15 years [s 45(2) Crimes Act 1958]	3 years 6 months	12 months
Total Effective Sentence		15 years 6 months
Non-Parole Period:		11 years
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:		345 days
6AAA Statement: N/A
Other relevant orders: Forensic Sample Order; registered as a sex offender pursuant to s 34 Sex Offenders Registration Act 2004 with life reporting; sentenced as a serious sexual offender pursuant to s 6F Sentencing Act 1991 (Vic) in respect of charges 3 – 9; Disposal and Forfeiture Orders.

We note that the applicant falls to be sentenced as a serious sexual offender on counts 3 through 9. It will be apparent that we have made orders for significant but not total cumulation. We have adopted the usual practice[24] of selecting the sentence imposed on the most serious offence as the base sentence, and have structured orders for cumulation upon that base sentence. We have not imposed orders for total cumulation (as is available under s 6E of the Sentencing Act 1991 (Vic)) as, in our view, to do so would infringe the principle of totality and be unjust in all the circumstances. We have moderated the impact of that consideration however in deference to the counterveiling serious sex offender legislation.[25]
[24]See for example Djordjic v The Queen [2018] VSCA 227.
[25]Sentencing Act 1991 (Vic) ss 6B, 6C, 6D and 6E.

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[2018] VSCA 257

12 October 2018