Director of Public Prosecutions v Lawlor (a pseudonym)
[2022] VCC 856
•23 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ANGUS LAWLOR (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 02-06, 13 & 15 May 2022 | |
DATE OF JUDGMENT: | 23 May 2022 | |
CASE MAY BE CITED AS: | DPP v Lawlor (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 856 | |
REASONS FOR VERDICT
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Subject:CRIMINAL LAW – Trial by Judge alone
Catchwords: Verdict; Rape; Digital Penetration; Judge-Alone; Delay; Reliability; Credibility; Honest but Erroneous Memory; Complaint, Mental Health, Eating Disorder, Continuous Memory; Recovered Memory; Accused giving Evidence; Good Character; Not Guilty
Legislation Cited: Crimes Act 1958 (as amended by the Crimes (Rape) Act 1991 (Vic); Criminal Procedure Act 2009 (Vic); Jury Directions Act 2015 (Vic)
Judgment: Not Guilty on Charges 1 & 2
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Dr J. Harkess | The Office of Public Prosecutions |
| For the Accused | Ms R. Shann SC with Mr P. Coleridge | Kartya Gracer Galbally & O’Bryan Lawyers |
HER HONOUR:
1Angus Lawlor[1] has pleaded not guilty to two charges of rape under the former s38(1) of the Crimes Act 1958[2]. The Crown alleges these offences were committed against Chloe Gainford[3] ('CG') when she was 16 to 17 years of age in the course of her attendance on Mr Lawlor for self-defence and massage sessions. The first of these charges is said to have occurred between 1 June 1995 and 31 August 1995 and the second between 1 October 1996 and 1 November 1996. This is now 26 to 27 years ago.
[1] A pseudonym.
[2]Crimes Act 1958 (Vic) s 38(1).
[3] A pseudonym.
2The matter came before me for trial by judge alone under the provisions of Chapter 9 of the Criminal Procedure Act 2009, ss420A to 420ZL[4]. The defence application, opposed by the prosecution was granted by His Honour Judge Mullaly on 27 April 2022.
[4]Criminal Procedure Act 2009 (Vic).
3Mr Lawlor was arraigned on 2 May 2022 and pleaded not guilty to two charges of rape. This marked the commencement of the trial. The Crown opened the case and the defence responded. The evidence commenced on 2 May 2022 and concluded on 6 May 2022. The prosecution called three witnesses, CG, Jordan Edman[5] and the informant Detective Sergeant Peter Romanis. The defence called the accused man, Angus Lawlor, and four character witnesses, Charlotte Throsby[6], Timothy Bruntell[7], Jessica Bruntell[8] and Kiara Brewis[9]. The defence also called Dr Andrew Gibbs, a neuropsychologist whose area of expertise is memory. After the evidence I was addressed by counsel, Dr Harkess for the prosecution on 13 May 2022 and Ms Shann SC for defence on 13 May 2022 and 15 May 2022.
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
[8] A pseudonym.
[9] A pseudonym.
4Some of the evidence, including the evidence of the complainant CG, was by remote hearing with the consent of the parties. There were no difficulties with the technology employed for the remote hearing that impacted the receipt of evidence by the court.
5Pursuant to s420G of the Criminal Procedure Act[10] my judgment must include the principles of law which I have applied and the facts upon which I have relied. I am not required to recount every piece of evidence or argument which has been put before the court. I have had regard to all of the evidence led throughout the trial and the arguments raised by counsel. In particular, I have reviewed the evidence to which counsel referred in their closing addresses and have done so in light of their arguments.
[10]Ibid s 420G.
6The effect of s420ZG of the Criminal Procedure Act[11] and s4A of the Jury Directions Act 2015[12] is that my reasoning must be consistent with how a jury would be directed. I may make any decision that could have been made by a jury.[13] In this trial that means I can find Mr Lawlor guilty or not guilty of the two charges on the indictment.
[11]Ibid s 420ZG.
[12]Jury Directions Act 2015 (Vic) s 4A.
[13]Criminal Procedure Act 2009 (Vic) s 420F.
7The general directions of law that would have been given to a jury and that I have applied in this case are as follows;
Presumption of innocence and the onus and standard of proof
8
Mr Lawlor is presumed innocent unless and until guilt is proved on evidence presented to the court. The guilt of Mr Lawlor must be established beyond reasonable doubt on each element of an offence charged. This is the highest standard of proof known to the law. If the court is not satisfied to this standard
Mr Lawlor must be found not guilty. The burden of proof is entirely on the prosecution to establish guilt beyond reasonable doubt. Mr Lawlor bears no onus of proof. It is not for Mr Lawlor to prove his innocence or prove anything at all.
Decision to be based solely on the evidence
9I must decide the case only on the admissible evidence led in this trial. In this trial such evidence takes the form of witness testimony and the exhibits that have been tendered. Where I have considered other evidence for the purposes of determining admissibility or I have heard applications pursuant to s198B of the Criminal Procedure Act[14] I have not had regard to such evidence in my determination of this trial. In addition, I have not done any outside research or had regard to any outside sources of information.
[14]Ibid s 198B.
Assessment of witnesses
10I must assess both the honesty and reliability of the witnesses. That is whether a witness was truthful and whether they correctly recalled the facts about which they gave evidence. In that assessment I may accept all, some or none of a witness’s evidence. I must bear in mind that I should not make any assessment only on the basis of how a witness gave evidence, as giving evidence can be a stressful experience. I remind myself that witnesses come from different backgrounds and have different abilities. There are too many variables to make the manner in which a witness gave evidence the only or even the most important factor in my assessment.
Separation consideration
11As this case involves two separate charges, I must give separate consideration to each charge and the evidence which relates to it.
The elements of the offence of rape
12To prove this crime the prosecution must prove the following four elements beyond reasonable doubt;
(a) That Mr Lawlor sexually penetrated CG in the way alleged;
(b) That Mr Lawlor did this intentionally;
(c) That CG did not consent to the sexual penetration; and
(d) That Mr Lawlor was aware either that CG was not consenting or that CG might not be consenting.
13In this case the prosecution must prove that Mr Lawlor introduced his fingers to any extent into CG’s vagina. There must have been actual penetration. Mere touching by the fingers to the outer surface of the external lips of the vagina is not enough. The law says that the vagina includes the external genitalia, that is the outer external lips of the vagina. The prosecution can prove this element by proving that Mr Lawlor introduced his finger to any extent between the outer lips of CG's vagina.
14The law says that consent means free agreement. The prosecution must prove that CG did not freely agree to being sexually penetrated by Mr Lawlor at the time in question. The law identifies a number of circumstances where CG is deemed not to freely agree, or consent, to sexual penetration. These circumstances include where the person is incapable of understanding the sexual nature of the act and/or the person mistakenly believes that the act is for medical or hygienic purposes. If I am satisfied beyond reasonable doubt that one of these circumstances existed in relation to CG, I must find that she was not consenting.
15There are two real issues in this trial that are in effect intertwined. The first issue is, ‘did it happen?’ That is, can the Crown prove beyond reasonable doubt that Angus Lawlor put his fingers in the vagina of CG? To this extent the other elements of intent and consent or that penetration was somehow therapeutic are not in issue. The second issue is, ‘how reliable is the memory of CG?’ Is her memory true or false? The key question in this trial from the defence point of view is whether there is a reasonable possibility that the purported memory of digital penetration is false.
16CG's evidence is critical to the prosecution case against Mr Lawlor. She is in effect the only witness to the actual charges. In these circumstances I must scrutinise the evidence of CG carefully.
Delay risking honest but unreliable evidence s32 of the Jury Directions Act
17Given the importance of CG's evidence it is appropriate to refer to this direction of law at the outset. In this case there is a delay between the alleged offending and when CG first complained, of between 17 to 21 years. Because of the passage of so many years between the date of the alleged offences and first complaint I must warn myself that the honest recollections of a witness about events that she believes to have occurred many years before may be unreliable. The passage of time may affect any witness’s memory. While in some cases people simply forget things, in other cases their memory may become distorted. That is, they may come to remember things that did not really happen. Human recollection is frequently erroneous and liable to distortion in this way. The likelihood of this error increases with delay. Other factors which may exacerbate this risk include the fact that CG was mentally unwell at the time she made her ‘complaint’ and she suffered from an eating disorder for the majority of her adult life that impacted on her ability to recall, concentrate and think clearly. There is also a possibility that CG did not have a conscious memory of the charged conduct for a period of between 17 to 21 years.
18The law says that I must take this potential unreliability into account when considering evidence that is given after a long delay. It impacts on whether I accept CG's evidence at all and, if I do accept her evidence in whole or in part, what weight I should give to that evidence. In making this assessment I must carefully consider not only whether CG's evidence is honest, in the sense that she believes it to be true, but also whether it is in fact true. While I must use my common sense and experience in assessing the effect of the delay upon CG's memory, I must also consider the possibility that she honestly believes what she is saying but is mistaken due to the distortion of her memory.
Background and undisputed facts
19Background facts, not contested in the evidence or without significant challenge, include the following;
(a) CG is now in her 40s. When she was 16 years old she lived in Western Melbourne with her family including her parents, two sisters, a brother and her Nanna. This address was directly across the road from Mr Lawlor’s address. He lived at this address with his wife and from 1995, his son.
(b) Mr Lawlor was a trained professional who had professional expertise in massage, self-defence and martial arts training. He ran his own business from his home. He used different areas of the house for training his clients.
(c) Mr Lawlor had a friendly neighbourly relationship with CG's parents.
(d) CG's brother undertook martial arts training with Mr Lawlor for several years. As a result CG became interested in doing martial arts and spoke to her father who arranged the classes. CG attended sessions with Mr Lawlor for about 18 months to 2 years during her Year 11 and Year 12. In total she attended around 20 sessions. The sessions did not occur at set times but were fairly regular.
(e) CG would attend the sessions wearing tracksuit pants and a t-shirt in the cooler months and in the warmer months she would wear shorts and a t-shirt. The training comprised of a curriculum that included warm-ups with sequences in martial arts and self-defence scenarios including staged attacks. On occasion, Mr Lawlor would provide therapeutic massage to CG's leg to treat flexibility and tight muscles.
(f) Mr Lawlor spoke to CG's father to obtain consent prior to conducting any massage on Ms Gainford.
(g) CG stopped attending Mr Lawlor for sessions when she finished Year 12. She stopped the sessions of her own accord and without issue.
(h) Apart from these sessions CG saw Mr Lawlor in 1999 for a back massage when she was pregnant. Mr Lawlor also attended her wedding.
(i) In 1997 CG was digitally penetrated by four young men in a car. This was referred to as the unrelated car incident. CG spoke about this incident with both Jordan Edman and Harry Maher[15].
[15] A pseudonym.
Ms Gainford’s evidence
20Broadly summarised, CG alleges that not long after she commenced the sessions with Mr Lawlor, he began to massage her leg after telling her she had tight adductors. On each occasion thereafter when Mr Lawlor massaged her leg CG says he inserted his fingers into her vagina. He spoke to her about what he was doing as he massaged her and asked her to say if he was in the wrong place. CG says that the massages to her leg occurred each time she had a training session with Mr Lawlor except when she had her period. In total she says there were around 20 sessions over the 18-month to 2 year period she attended for martial arts and self-defence classes with Mr Lawlor. It was also CG's evidence that the insertion of Mr Lawlor’s fingers into her vagina made her uncomfortable and it hurt.
21The particular occasions stated in CG's evidence as the two charges are as follows:
Charge 1
22They were in the loungeroom of Mr Lawlor’s home in the winter of 1995. CG was wearing grey tracksuit pants and a t shirt at the time. The session began with CG doing martial arts sequences where she would kick without force aiming at the correct position on Mr Lawlor’s body. In the next sequence she did the same series of kicks, this time using force to kick rectangular padding held by Mr Lawlor at various parts of his body. It was whilst kicking with force towards Mr Lawlor’s head that he identified CG had tight adductors. This was because she was not able to get the height or force that she should have been able to achieve with the kick.
23The next part of the session involved self-defence. Mr Lawlor told CG to lie on the floor on her back, she had her hands above her head. He lay on top of her with his full body weight and her hands were pinned. The idea was that she would need to buck and thrust her hips to get him off using momentum rather than strength. She could not remember the outcome of the self-defence component but said they would have workshopped through scenarios.
24After self-defence they moved to massage. Mr Lawlor went off to wash his hands and asked her to take her tracksuit pants off and lie down as he was going to work on her adductors, about which they had talked at the beginning of the class. She did as he requested and lay on the loungeroom floor with her underpants and t-shirt on. Mr Lawlor came back to the room and put a towel under her bottom. He asked her to keep her right leg out long but bend her left leg with her foot still on the floor and then relax it out to the left side. She felt uncomfortable but assumed he was a professional massage therapist and this was something he did for people if they had issues when he was training them. Mr Lawlor then knelt on both of his knees against her folded lower left leg and he explained he was going to massage her adductors.
25CG did not watch what Mr Lawlor was doing. She lay on her back looking at the roof or closing her eyes. She could feel he started working on her muscle above her knee on the inner side of her thigh. As he did this Mr Lawlor was talking about the muscles and explaining the bones. He continued to work the inside of her thigh toward her groin, when he was closer to her underwear the nature of his massage was more focal. Then with his pointer and middle finger he was massaging and she felt he was touching on her external genitalia. He worked the area for some length of time then moved to the next point working in a circular motion. As he did this sequence he spoke about the adductors feeling knotted and explained this was getting up close to where the adductors connected into the bone. He used gradual small movements. He moved her underwear up to the side and then she felt two fingers, which she believed to be his pointer and middle finger work slowly towards the inside of her vagina and work around the wall of her vagina. His fingers went in her vagina to his second knuckle.
26Mr Lawlor spoke throughout the massage asking if she could feel it and if it was hurting like when someone works on a tight muscle. He asked if he was in the wrong place and she answered ‘yep’. At trial, for the first time, CG described the sound she recalled. It was a sound similar to when you are intimate with someone and they put their fingers inside you. After the massage finished Mr Lawlor went and washed his hands and they had a little bit of small talk and CG then left. She felt embarrassed and confused after this had occurred.
Charge 2
27They were in the lounge room of Mr Lawlor’s home. It was some time in the latter half of 1996 because CG was wearing a pair of blue adidas shorts, Exhibit A on the trial, which she purchased from Highpoint Sportsco with a voucher that she won as an award at a school speech night in October 1996. An award certificate and the program from the speech night were tendered and marked as Exhibits B and C on the trial.
28
The session started with the martial arts sequences that were a regular routine of the training sessions. CG still had trouble hitting Mr Lawlor’s head height with force as she still had issues with her adductors. They moved on to the self-defence part of the session. The sequence for self-defence that day involved
Mr Lawlor throwing CG onto the couch and simulating an attack. He wore a cricket box and he told her to punch him with force to his groin to get him off. After the training component Mr Lawlor told CG he would work on her adductor. He went off to wash his hands. CG had her shorts on so she did not undress. She lay on the floor in the same position as she described for Charge 1.
29
CG lay on her back on the loungeroom floor with her eyes closed.
Mr Lawlor began working on her inner thigh near her knee and then worked through the muscle down towards her groin. He spoke to her about her muscles, what he was doing and said to let him know if he was not in the right spot.
Mr Lawlor worked his way down to her groin area and the vulva. He was working in small circular motions. It felt like he was targeting knotted points in the muscle. Mr Lawlor had his hand up her shorts and she could feel the tension of the material. Eventually, Mr Lawlor moved his fingers under the elastic of her underwear and into her vagina. CG felt Mr Lawlor’s two fingers go into her vagina. Whilst his fingers were in her vagina Mr Lawlor used subtle movements like he was working on where the muscle connected to the bone. His fingers went in to his second knuckle. He spoke about the knotting of the muscle and she could feel relief when he worked on the outside, on her vulva and groin area, although it also hurt. When his fingers were inside it was intense. Again at trial, for the first time, she recalled the sound of Mr Lawlor’s fingers being in her vagina. The massage ended. She assumed he went and washed his hands, she got up, made small talk, put her shoes on and went home.
30CG described these two incidents as being imprinted, like a photographic feeling in memories that have not changed. She did not consent to Mr Lawlor putting his fingers in her vagina, on either occasion, in circumstances where she was not asked and the penetration just occurred as part of the massage. CG did not say anything to Mr Lawlor about what he had done as she was a kid and still believed at that point that what he was doing was part of the treatment to help get some more flexibility out of her adductors.
31CG gave evidence as to the offences which was largely consistent with how she had previously described them. Although she did admit to having been mistaken that the self-defence scenario relating to the couch actually occurred when she was wearing her blue shorts and not her grey tracksuit pants. There were also some additions to her evidence at trial that she had not previously mentioned in relation to the sound that accompanied the alleged digital penetration. These included the fact that she had a spiral perm when she was wearing the grey tracksuit pants and that Mr Lawlor recorded Days of Our Lives for his wife during the first incident.
Differences in complainant’s account s54D of the Jury Directions Act[16]
[16]Jury Directions Act 2015 (Vic) s 54D.
32In this case the parties agree that this difference and these additions occurred. I may use a difference in CG's account when I am assessing her credibility and reliability. When I am assessing her evidence I must bear in mind that experience shows that:
· People may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time;
· Trauma may affect different people differently, including by affecting how they recall events;
· It is common for there to be differences in accounts of a sexual offence. For example, people may describe a sexual offence differently at different times, to different people or in different contexts; and
· Both truthful and untruthful accounts of a sexual offence may contain differences.
It is up to me to decide whether or not the differences in CG's account are important when assessing her credibility and reliability. It is up to me to decide whether I believe all, some or none of her evidence.
Other aspects of CG's evidence
33These two particular occasions were the only two CG could recall in any detail, although she said Mr Lawlor put his fingers in her vagina at every session she attended from mid-1995 through until she stopped the sessions in late 1996. When asked why she continued to attend she said she enjoyed the sessions. It was her evidence that she just stopped the sessions at the end of Year 12 as she moved to hanging out with her friends during summer before starting university. I find the evidence that she attended sessions with Mr Lawlor for 18 months to 2 years notwithstanding that he would digitally penetrate her causing her pain and discomfort at each session as unlikely or somewhat implausible.
34At trial CG gave evidence that she first complained to Jordan Edman in around 2013 to 2014. Further she said she had a rampant eating disorder from the late 1990s through until two and a half years ago. According to CG this eating disorder was very effective at suppressing things. In this context she categorised the memories of what had occurred in 1995 and 1996 with Mr Lawlor as continuous memories that were not at the forefront of her mind as she downplayed them and tried to push them away.
35This was contrary to her sworn evidence at the committal where she described that she had ‘blocked’ the memories of the allegations involving Mr Lawlor from when she was around 19 years of age and she had not thought about them until she saw Mr Maher when they came flooding back to her.
36Her evidence at trial was also contrary to notes that she made prior to going to the police in 2017 where she said:
“I had ‘forgotten’ about it again for some years. The ongoing battle with anxiety led to a total meltdown in July. Going to Harry and actually working through what I thought at the time was the most traumatic sexual abuse I’d been through and I just suddenly remembered it.”
When this note was put to her in cross examination, CG agreed that where she wrote ‘I had forgotten about it’ that referred to the allegations against Mr Lawlor. The ‘most traumatic sexual abuse’ was the unrelated car incident and ‘I just suddenly remembered it’ again referred to the allegations against Mr Lawlor.
37The evidence that Jordan Edman was first complaint was also contrary to notes CG made in April 2018 in preparation for a pre-text call with Mr Lawlor where she said:
“I had a bit of a meltdown about nine months ago as I work in a high pressure job and I had been burning the candle at both ends for too long. I started seeing a psychologist on a regular basis, so we went back to the beginning and discussed my upbringing, childhood, et cetera. I was in a particular session working through some trauma recovery and my mind took me back to when I used to do the mixed martial arts training with you. I have spent a lot of years suffering the consequences of that abuse. I hate going to doctors and avoided pap smears as long as I possibly could. I get highly anxious seeing male doctors, physios, et cetera and for a long time I had ‘forgotten’ why, but now it makes sense.”
CG agreed that this was also her writing that she had forgotten about the allegations against Angus Lawlor.
38In relation to the sessions with Mr Maher in 2017, CG agreed that she did not bring up the allegations involving Mr Lawlor in the first session. She accepted that this did not occur until the fifth session when Ms Shann SC, counsel for Mr Lawlor, advised her that some notes of Mr Maher had been supplied and that is what they indicated. It was CG's evidence that she was working through her history and the unrelated car incident came up and it was then she recalled the allegations in this case. CG agreed this was because she did not have a conscious memory of the Lawlor allegations during the earlier sessions with Mr Maher.
39On the topic of flashbacks CG indicated that she had constant flashbacks in relation to the unrelated car incident but not in relation to the allegations against Mr Lawlor. She did however agree that she has had flashbacks whilst asleep in relation to the Lawlor allegations in the last few years. On waking she said they felt like dreams.
40CG agreed that she had clearly mentioned Jordan Edman as first complaint in her statement in relation to the unrelated car incident, made to police in December 2017. She agreed she had made no similar comment or reference to a conversation with Edman about the allegations involving Mr Lawlor, in either statement she made in relation to this case.
Complaint
41When, how and why someone complains about alleged sexual offending can be relevant to the consideration of their reliability and credibility. In this case CG said nothing about these allegations of inappropriate massage by Mr Lawlor in 1995 and 1996 until either 2013, a delay of 17 to 18 years, when she spoke to Jordan Edman or 2017, a delay of 21 to 22 years, when she sought treatment from psychologist Harry Maher. In her evidence CG gave a number of reasons for her delayed complaint including that she was confused, embarrassed and stressed. She stated she was not really sure if anything wrong had happened or if what had occurred was part of legitimate treatment for having tight adductors.
Delayed complaint ss52 & 53 of the Jury Directions Act[17]
[17]Ibid ss 52-53.
42In relation to delayed complaint I direct myself that people may react differently to sexual offences and that there is no typical, proper or normal response to a sexual offence. I also note that some people may complain immediately, others might not complain for some time and others may never complain. I also acknowledge that it is common for there to be a delay in complaint about a sexual offence and this may occur for good reasons. These reasons could include that a complainant is ignorant about the nature, quality and character of the act performed upon them, they may feel powerless or they may have employed psychological strategies to cope with the abuse such as repression or suppression of the acts.
43The reasons for not complaining given by CG persisted for many years. It was her evidence that although she had suspected that what Mr Lawlor had done was definitely wrong it was not until she googled it in 2017 that she was confident that what had occurred was in fact wrong as she now had outside confirmation. It was then that she complained to police. I find the evidence surrounding the reasons put forward as to why CG delayed her complaint to be implausible. I do not accept that she would not know that digital penetration in the context of a legitimate massage was wrong in light of the following:
(a) She was 16 to 17 years old at the time of the allegations.
(b) Her experience of having been digitally raped by four others in the unrelated car incident was in 1997.
(c) Her studies.
(d) Having had children.
(e) Having been told by Jordan Edman that Mr Lawlor’s conduct as she described it was unethical and definitely wrong.
(f) As part of her own common sense and maturation process.
Complaint
44In this case the prosecution submit that CG first complained to Mr Edman in 2013 or 2014 that Mr Lawlor digitally penetrated her vagina. It is for me to determine whether CG made the alleged complaint. If I find that she did I can use the complaint in two ways. First, I can use the contents of CG's complaint as evidence in the case. For example I could use her statement that Mr Lawlor digitally penetrated her vagina as evidence that Mr Lawlor did in fact digitally penetrate her vagina. When considering this evidence it is important that I remember just because a person says something on more than one occasion, that does not mean that what she says is truthful or accurate. A false or inaccurate statement does not become true and accurate by virtue of it being repeated.
45Secondly, I can use CG's complaint to assess her credibility. The fact that she made the complaint and the content of that complaint may show that her account of the events in question has been consistent. In this case Dr Harkess on behalf of the prosecution submitted that I should put aside the discrepancies of CG in not stating that Mr Edman was her first complaint until a few days before trial as when you consider her evidence and the evidence of Mr Edman it is clear that she first disclosed the alleged offending to him in around 2013. Dr Harkess submitted that the fact that CG complained about the alleged incident in this manner makes it more likely that she is telling the truth here in court because Mr Edman’s account of what she told him is entirely consistent with the account of the actual offending that she has given. He invited me to put aside the fact that she did not initially say this to the police bearing in mind that when she went to the police what was at the forefront of her mind were the more recent sessions that she had with her counsellor. He submitted it is not the conversations that would be imprinted on her mind. What has remained imprinted on her mind are the offences that occurred in 1995 and 1996. The defence disputed this and argued amongst other things that the complaint to Jordan Edman in 2013 was not a complaint about the allegations she now makes against Mr Lawlor.
46The issue of who was first complaint and the substance of the complaint is not straightforward in this trial.
47In terms of the substance of the complaint itself the evidence given by Jordan Edman was that he began having quite deep conversations with CG after SES training as a result of speaking about his sister’s battles with an eating disorder. In this context CG had disclosed her own eating disorder and had also spoken to him about having dreams that she then considered to be true memories. CG also spoke to Mr Edman at length about the unrelated car incident at around this time.
48Mr Edman described that the topic of massage came up in conversation with CG in the context of his own situation as a teacher. He said in evidence that at the time of the conversations in 2013 he was working as a physical education teacher. He told CG that he was reported to the principal as a result of the demonstration of massage where he was showing his students inappropriate massage to the upper, inner part of the leg. It was his evidence that only after hearing this did CG first speak to him about an experience of being massaged when she was young. Initially he said she did not describe it as inappropriate. Mr Edman’s evidence was that it was only as the memory came through and CG had flashbacks that something did happen, that she described it as inappropriate touching by the massage therapist. Mr Edman did not use the word penetration in his evidence but rather said that CG described touching and caressing in and around her vagina and genital area.
49In contrast Ms Gainford’s evidence about the complaint to Edman was vague. She said she told him exactly what happened, and she said that she would have been detailed. Otherwise, she had little recall of what she discussed with Mr Edman about the allegations against Mr Lawlor. CG was adamant that after disclosing what happened to her she asked Mr Edman if that was a normal part of treatment and his response was that it would be unethical.
50I do not accept as submitted by the prosecution that the accounts of Mr Edman and CG are entirely consistent. There are significant and concerning differences. I prefer the evidence of Mr Edman as to the contents of these conversations over CG's evidence. In particular, I find it unlikely that CG asked Mr Edman if digital penetration was a normal part of treatment for tight adductors for three reasons. First, Mr Edman gave detailed and consistent evidence about the conversations and he did not agree this had been said. Second, had CG described digital vaginal penetration to Mr Edman he would not have described this as merely unethical or not normal. This is particularly so in light of his obvious distress at the reprimand by the principal and his care to teach correct massage to his students and not have them rub the inner thigh of others. Third, it is inconsistent with CG's evidence that in 2017 she was still uncertain whether Mr Lawlor had done was wrong and so she googled it. Having taken this step she was definitely sure it was wrong and so proceeded to report the matter.
51In regard to who was the first person to whom CG complained, I find that although CG obviously had a conversation with Jordan Edman sometime around 2013 that included some reference to Mr Lawlor, I cannot be satisfied that this was an actual complaint about digital penetration. It is more likely on the evidence that it was not until she spoke with her psychologist Harry Maher in 2017, that she made the complaint alleging digital penetration.
52This finding is consistent with the first version of evidence CG gave in relation to complaint, which is detailed in these reasons at [33] to [39] above. This first version of the evidence was detailed: in notes made by CG prior to her attendance at the police station; in her first police statement and was not contradicted in her second; in notes CG made in anticipation of a pre-text call with Mr Lawlor; and importantly it was confirmed whilst giving sworn evidence at the committal.
53More importantly I cannot overlook or put to one side that it was only a few days before the trial that CG nominated Mr Edman as first complaint.
54
At the time that CG swore her statements and gave sworn evidence at committal she nominated Mr Maher as first complaint. It was her evidence that she honestly believed that to be the case as she had recently been in therapy with
Mr Maher. At trial her belief now was that her previous sworn evidence was wrong and that Mr Edman was in fact first complaint. The state of CG's evidence in relation to complaint, particularly in relation to who was first complaint, in my view raises grave issues as to her reliability. It not only represents a significant change in CG's evidence but is a demonstration of an honestly held recollection that is an admitted erroneous distortion of memory.
55
It also demonstrates the fragility of her memory as she had forgotten her 2013 conversation with Mr Edman when making her police statements and giving sworn evidence at the committal. I cannot accept that these conversations with
Mr Edman would not have been in her mind as she made her second statement in relation to this matter on the same day or very close in time, as her statement in relation to the unrelated car incident. CG nominated Mr Edman as first complaint for the unrelated car matter, therefore the Edman conversations must have been in her mind on or around that time.
56Given the state of the evidence as I find it in relation to complaint I do not intend to use CG's complaint made to either Mr Edman or Mr Maher as evidence of the truth of its contents in the case. For the same reasons I do not consider that I can use the evidence of either the complaint to Mr Edman or Mr Maher to bolster her credibility.
Nature of CG's memory
57
There was another significant shift in CG's evidence apparent in the trial. This involved the topic of memory as detailed at [33] to [39] above. CG's original position was that she had ‘blocked’ or ‘forgotten’ the allegations involving
Mr Lawlor. At trial her evidence changed and she described her memory of the allegations differently, that is as being merely supressed or not at the forefront of her mind. I consider this change in evidence to be another example of an honestly held recollection that is an admitted erroneous distortion of memory. The very fact that CG has made such a significant change to her evidence causes me to doubt her reliability.
58Given the evidence of the defence memory expert, Dr Gibbs which I will come to shortly, I do not consider it necessary to make a firm finding as to whether CG's memory is categorised as ‘blocked’ or ‘forgotten’ or a ‘continuous’ memory that has been ‘pushed down’ and has not been at the ‘forefront of her mind’.
59
I accept that the allegations involving Mr Lawlor were not consciously available to CG for around 17 years. What fortifies this view is the argument made by
Ms Shann SC that CG has had constant cues throughout the years which should or could have caused recall but did not. These included the doctors and physio appointments that caused her terror, whether to take her children to scouts, the conversation with Edman, the googling and the first four sessions with Maher when it was not mentioned.
Mental Health of CG
60
I now turn to specifically consider the mental health of CG. I do so reminding myself that as the most crucial witness in this trial her reliability and therefore her mental health is extremely important. I also remind myself of the unreliability direction detailed at [17] and [18] above. Of course I accept the submissions of
Dr Harkess that I should not decide this case on stereotypes and that people who battle mental health issues are not in a category of witness who ought be considered less reliable because of these issues.
61
As previously detailed there are two potential occasions of first complaint in this trial. The first was in 2013 or 2014 to Mr Edman and the second in 2017 to
Mr Maher. On both of these occasions CG describes herself as being seriously mentally unwell. On both of these occasions CG has described talking about the allegations against Mr Lawlor for the first time in around 17 or 21 years. The evidence of conversations and observations made by Mr Edman at the time of his conversations with CG are extremely concerning. Likewise, although there is no detail of the conversations between CG and Mr Maher it was her evidence that she was seeing him because she had a complete meltdown, and she was very unwell.
62
The prosecution relied on CG's evidence that the only memories that were affected by her mental health condition were those that were not imprinted in her brain. Her evidence was that the images and feelings from when she was assaulted were imprinted in her brain and so were not affected in the same way. Ms Shann SC pointed out in her closing address that when CG made her first statement to police she had no recollection of the first incident. This was something that she now described as being ‘imprinted on her brain’ yet she forgot it at a time when she would be trying to remember all of the details of each instance of abuse.
CG did not mention what is now the substance of Charge 1 until she made her second statement. I accept Ms Shann SC’s argument in regards to this evidence. I also take into account Dr Gibbs' opinion in relation to this evidence. See (n) below. I find it highly unlikely that CG could pick and choose what memories she forgot and what she remembered when she was in the grips of such poor mental health.
63I accept that CG did not intend to mislead the court at committal when she gave evidence that Mr Maher was first complaint and when she categorised her memories as blocked. I accept that at the time she gave this evidence she honestly believed it to be the truth. But her evidence at trial in relation to each of these issues was different, thus revealing the most telling and concerning impact of CG's poor mental health – that it led her to give false evidence on oath. It was her rampant eating disorder that she cites as the reason for having forgotten that it was Mr Edman who she first spoke to about the allegations against Mr Lawlor.
64The prosecutor Dr Harkess described CG's evidence before me as being very detailed and intense. He submitted that her evidence included reference to recollection of observations, things that were said, sounds and feelings. He argued that this was the type of account you would expect from someone who had actually experienced the events they were describing. Whilst Dr Harkess acknowledged that CG had considerable mental health battles he submitted that my confidence in her testimony should not be eroded as a result.
65CG on her own admission has suffered from poor mental health for the majority of her adult life. In particular, she has been afflicted by what she described as a rampant eating disorder, bulimia that involves eating and purging. It was her evidence that this eating disorder caused her to have foggy recollections, poor concentration, impaired ability to function, impaired recall, impaired memory and was very effective at suppressing things. These symptoms and CG's evidence as to the impact of this eating disorder upon her at crucial times is what takes this from stereotypical to relevant. It is the admitted impact of the mental health condition upon CG that erodes my confidence in her testimony, not the mere fact that she had mental health problems.
Evidence of Dr Gibbs – Uncontested Expert Evidence
66Dr Gibbs gave evidence to assist and educate the court in relation memory. He was asked to give evidence by the defence as he is an expert in this field. In the course of giving evidence he expressed his opinions about memory and the reliability of memory in a variety of scenarios. Dr Gibbs had been provided the evidence of the witnesses in the trial.
67Ordinarily witnesses are not allowed to give their opinions in court. They must confine their evidence to their own observations. However, the law says that people with specialised knowledge or training are allowed to give their opinions about matters within their field of expertise if this may assist the court in reaching a decision. I understand that I am not required to accept Dr Gibbs' opinion. His opinion is a piece of evidence like any other which I may accept or reject. I appreciate though that the prosecution does not challenge Dr Gibbs’ evidence nor his expertise.
68In regard to Dr Gibbs’ evidence I accept the argument of Dr Harkess that issues relating to memory and failures of memory are within the realm of specialised knowledge and also within the realm of common sense. That is particularly so in a case like this where the issues with CG's memory are so obvious. I do not however, find any aspect of Dr Gibbs’ evidence contrary to law. Dr Gibbs did not give evidence as to whether the offences occurred. Rather his evidence focussed on issues of memory and the risks of reliability and unreliability as they related to the evidence in this case. I find Dr Gibbs’ evidence to be based upon a proper foundation and I accept his findings that there is a high risk of unreliability of the memory of CG in this case.
69In particular I accept the following opinions of Dr Gibbs:
(a) People can have memories of past events that are wrong irrespective of the intensity or vividness of recall.
(b) The ability to visualise is not a predictor of reliability, nor is intensity or the nature of emotional attachment to a memory.
(c) A held memory that is of historically false events is called a pseudo memory.
(d) A recovered memory is one you have not always been aware of as opposed to a continuous memory of which you have been aware. Use of the description ‘blocking’ and ‘absence of conscious memory’ is consistent with recovered memory.
(e) A period of delay and dreaming can be sources of a pseudo memory.
(f) People will not always be aware that claim to memory is a pseudo memory. The person can be ignorant to the suggestion that influenced them.
(g) One could have a dream, associate it with a real historical event, and over time forget that it was dreamt and believe it to be the memory.
(h) Someone relaying their personal experience, or even media portrayals can be ‘suggestion’. Someone’s own historically accurate memories can be a source of suggestion. In terms of CG's conversation to Mr Edman, the reprimand he received in relation to teaching students massage, and his relaying of that to CG could amount to a risk of ‘suggestion’. It is also possible this could prompt a legitimate memory.
(i) Over the passage of time there is normal decay of memory and forgetting, and this can involve creation of detail in relation to exposure to post-events or post-time circumstances and information. This can be the result of suggestion or just general influences.
(j) 17 years is a significant period of delay. The longer the period of delay the greater the risk of unreliable memories.
(k) The amount of sleep, physical state and medical state can all impact memory.
(l) Mental illness can undermine memory, in particular eating disorders that involved purging, inducing biochemical changes can cause problems with attention and memory.
(m) The description of the rampant eating disorder by CG in this case is consistent with a mental illness or eating disorder than can undermine memory.
(n) There are significant concerns with the assertion that CG could look back and identify which memories were impacted by mental illness or eating disorder and which were not.
(o) A second issue that arises from attaching one’s mental illness to memory is that people can look to attach emotional symptoms to the event or memory to provide meaning or understanding, to explain why it is that they are actually having that particular disorder. Their current distress, feelings and disorder can become causally related to the past event linking the event with the illness.
(p) This process is effort after meaning. The harder you try to understand what you are remembering, the more you risk pseudo memory and the more likely the memory will be vivid or emotionally intense. This is particularly problematic for vulnerable people or people who have experienced trauma.
(q) In this case the description by CG of past terror seeing doctors and physios is an example of a past incident that, if she engaged in effort after meaning, may give rise to inaccurate reinterpretations or creation of pseudo memories.
(r) Flashbacks are not necessarily memories. Flashbacks usually occur within the few years after the particular event. Delayed flashbacks are rare.
(s) The context of the allegations against Mr Lawlor following conversations about the car incident are concerning because those conversations could produce a priming effect. That is, prior knowledge or experience influencing the content of a subsequent memory that is not related to that experience.
(t) In this case the unrelated car incident could have informed the strong reaction of CG to Mr Edman’s story about massage at school.
(u) If first complaint was to Edman there is a risk that during the disclosure the complainant recovered a memory. There is a risk from a neuropsychological perspective that the memory though honestly held was a false memory.
(v) There is a high risk of unreliability with CG’s memory as a result of the dreams, the delay, the nature of the conversation with Mr Edman and the risk of suggestion.
(w) If CG first complained to Mr Maher in circumstances where she was experiencing a mental breakdown and attended upon him for the purpose of working through such a breakdown, and in the context of discussing the unrelated car incident she suddenly remembered the Lawlor allegations as ‘flooding back during therapy’ – such a description would be consistent with recovered memory.
(x) This description would also raise the priming effect and a potential contamination of the memory. Mental state at time of recall is also an issue that can impact reliability.
(y) The proximity of the two incidents broadly, that is, the car and Lawlor, being 1995/1996 and then 1997, could impact reliability/risk of contamination as well
(z) In this version of first complaint there is a risk of a recovered memory. There is a risk from a neuropsychological perspective that the memory though honestly held was a false memory.
(aa) To ascertain truth of a memory it is necessary to look at indicia of reliability and unreliability.
(bb) The significance of an event, the recurrence of an event, the state of mind of the person remembering it and level of detail, although not determinative of reliability, would all be used to place a memory on a scale of reliability.
(cc) It is more likely that repeated events will be remembered because of the repetition.
(dd) Risks of mental health, priming, suggestion and generalisation can undermine reliability whether the memory is continuous or recovered.
70In light of my acceptance of these findings I remind myself of the direction in relation unreliable evidence at [17] and [18] above.
Accused giving evidence
71
In this case Mr Lawlor chose to give evidence. He did not have to do that as he has the right to remain silent in court. It is the prosecution who must prove
Mr Lawlor’s guilt beyond reasonable doubt. It is not for Mr Lawlor to prove his innocence. This has not changed because he chose to give evidence. In choosing to give evidence, Mr Lawlor undertook to tell the truth. He also submitted himself to cross-examination and in that way his evidence was tested. Mr Lawlor is not different to any other witness and I must assess his evidence in the same way as I assess the evidence of any other witness.
72When I am considering Mr Lawlor’s evidence, I must not give less weight to the evidence of the accused just because any person who is on trial has an interest in the outcome of the trial. I remind myself that it is a critical part of our justice system that people are presumed to be innocent unless and until they are proved guilty. It would therefore be unfair to Mr Lawlor if I gave his evidence less weight because he is the accused and so wants to be acquitted. I must give effect to the presumption of innocence.
73In this case there is a clear conflict between the evidence of CG and Mr Lawlor’s evidence. There are four broad conclusions that I can reach about Mr Lawlor’s evidence. If I think it is true, then I would find him not guilty. If I am not sure whether his evidence is true, but I think it might be then I would have a reasonable doubt about the prosecution’s case and again I would find the accused not guilty. Similarly, if I merely prefer the evidence of CG evidence to Mr Lawlor’s evidence then I must find Mr Lawlor not guilty. It is not sufficient for me to merely find the prosecution case to be preferable to the defence case. It is not a question of simply balancing one case against the other. The prosecution must establish Mr Lawlor’s guilt beyond reasonable doubt. Finally, if I reject Mr Lawlor’s evidence that does not mean I must find him guilty. Instead, if I reject his evidence I would put it aside and ask whether the prosecution has proved Mr Lawlor’s guilt beyond reasonable doubt on the basis of the evidence I do accept.
74Mr Lawlor strongly denied the allegations that he had put his fingers into the vagina of CG.
75Clearly Mr Lawlor’s memory had been impacted by the many years that had passed since the incidents were alleged to have occurred. Notwithstanding this he was able to recall some major life events that enabled him to put in context what was occurring around the time of the allegations. The most important of these was that his son was born in 1995. As a result of this his wife had six months of maternity leave. Whilst he could not say where his wife was at any given time it was his evidence that she was likely at home or out and about with the baby. It was also his evidence that his wife’s mother would come over quite often and assist with the baby. In these circumstances Mr Lawlor could not be certain when his wife or her mother-in-law might come home or might come into the loungeroom. Offending in this manner would be very risky and extremely brazen.
General and Specific Good Character
76Four witnesses, Charlotte Throsby, Timothy Bruntell, Jessica Bruntell and Kiara Brewis were called to give evidence of Mr Lawlor’s character. Each of them gave evidence of knowing Mr Lawlor for many years including around the mid to late 90s. They were all long term clients. Broadly their evidence was that Mr Lawlor was a highly skilled and highly principled health professional who always sought appropriate consent and who had never done anything inappropriate to either them or any family member he had treated. He was trusted by all of them. Each of the witnesses had come to know Mr Lawlor personally as a result of the long term practitioner client relationship. To this extent they each gave evidence of his general good character and described him as honourable, trustworthy, caring and kind. They all attested that it would be unlikely in their view for Mr Lawlor to have committed the two offences for which he has been charged.
77The informant Detective Sergeant Romanis gave evidence that Mr Lawlor had no prior convictions and no police matters that were subsequent or pending. Detective Sergeant Romanis had also made inquiries with the professional associations of which Mr Lawlor was a member and confirmed that there had been no complaints of inappropriate behaviour made against Mr Lawlor in his many years of practice.
78I accept this evidence of both general good character and specific good character and as such I can use it when assessing the credibility of Mr Lawlor’s evidence and his denials of the prosecution case. This is because a person of good character is thought to be more trustworthy. As a result I am less willing to accept the prosecution’s evidence. I can also use this evidence when determining the likelihood that Mr Lawlor committed the charged offences. This is because it is generally believed that a person of good character is unlikely to commit a criminal offence. Of course, this does not mean that I must find Angus Lawlor not guilty having accepted that he is a person of both general and specific good character. This fact cannot alter proven facts. It can only help me to determine whether or not those facts have been proven. I am also mindful that a person of general and specific good character can commit a crime for the first time.
79Taking all of this into account I find that Mr Lawlor presented as a credible and reliable witness. He was confident in his denial of the allegations and I cannot dismiss his evidence as untrue.
Prosecution failure to call witnesses s43 of the Jury Directions Act[18]
[18]Ibid s 43.
80In this case there were two witnesses that I would have expected the prosecution to call to give evidence. They are Ms Lawlor, Mr Lawlor’s wife and Harry Maher, who was CG psychologist and arguably a complaint witness. Detective Sergeant Romanis gave evidence that he did not seek a statement from either witness. Firstly, in relation to Ms Lawlor he could not really say why that was as he could not recall. In relation to Harry Maher, he did not get a statement because of thoughts he had about privacy. I do not find either reason satisfactory. Both witnesses were clearly relevant. Mr Maher in particular could have given evidence about CG's mental state that could have been of significant importance. I conclude that neither witness would have assisted the prosecution.
Forensic disadvantage caused by delay s39 of the Jury Directions Act[19]
[19]Ibid s 39.
81A significant consequence of the delay in this case is that the memory of witnesses, including Mr Lawlor have deteriorated. CG's father, who might have given exculpatory evidence – died; and any books or records of the business no longer exist. In assessing the evidence in this case I must have regard to these significant considerations. As a matter of law I must take these disadvantages into consideration when determining whether the prosecution has proved Mr Lawlor’s guilt beyond reasonable doubt.
Conclusion
82I have considered all the evidence in this case. I have considered the arguments of counsel. I have applied all necessary directions including those requested by prosecution and defence. I have had particular regard to the high burden of proof required to be satisfied by the crown of beyond reasonable doubt.
83On my assessment CG presented as an honest witness who on the face of it was clear in her account of the alleged conduct charged. She gave detailed and intense evidence. However, as a result of the findings I have made on the evidence I do not accept CG as a reliable witness. The primary reasons for this relate to the state of her memory as I have already canvassed, and the significant changes in her evidence. This is not a positive finding that I disbelieve CG. I have simply applied as carefully as I can the burden and standard of proof in assessing the evidence whilst having regard to the relevant jury directions.
84In addition, I am unable to reject the evidence of Mr Lawlor. This is particularly so when I give proper regard to the directions of law I must follow as they relate to the ‘accused as a witness’ and ‘general and specific good character’.
85In these circumstances I have a reasonable doubt in relation to the crucial issue in this trial that is whether Angus Lawlor digitally penetrated the vagina of CG on either occasion as alleged and accordingly my verdict is as follows:
86Mr Lawlor, if you could please stand.
87In relation to Charge 1, rape, I find Angus Lawlor not guilty;
88In relation to Charge 2, rape, I find Angus Lawlor not guilty.
89That is the verdict of the court.
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