Duesbury (a pseudonym) v The Queen
[2022] VSCA 117
•23 June 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0092 |
| JAMES DUESBURY (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant, the victims and witnesses.
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| JUDGES: | PRIEST, KYROU and WALKER JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 June 2022 |
| DATE OF JUDGMENT: | 23 June 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 117 |
| JUDGMENT APPEALED FROM: | DPP v [Duesbury] (County Court, 27 April 2021, Judge Leighfield) |
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CRIMINAL LAW – Appeal – Conviction – Two charges of sexual activity in the presence of a child under 16, three charges of sexual assault of a child under 16 (charges 3, 4, 9), two charges of sexual penetration of lineal descendant (charges 7, 10) – Two complainants were applicant’s granddaughters – Inconsistencies between complainants’ visual audio recorded evidence (VAREs) and evidence at special hearing – Complainant in respect of charge 7 did not say in evidence that offending subject to that charge occurred – Whether conviction on charges 7 and 9 not reasonable or not supported having regard to evidence – Leave to appeal granted in respect of charge 7 only – Appeal allowed.
CRIMINAL LAW – Appeal – Conviction – Whether prosecutor’s final address created irregularity in conduct of trial and caused substantial miscarriage of justice on certain charges – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Ms G F Connelly | ||
| Respondent: | Ms D I Piekusis QC | ||
Solicitors | |||
| Applicant: | Victorian Aboriginal Legal Service | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
KYROU JA
WALKER JA:
Introduction and summary
On 26 February 2021, a County Court jury found the applicant guilty of two charges of engaging in sexual activity in the presence of a child under 16[2] constituted by masturbation (charges 1 and 2), three charges of sexual assault of a child under 16[3] (charges 3, 4 and 9) and two charges of sexual penetration of a lineal descendant[4] (charges 7 and 10). The applicant was found not guilty of two charges of engaging in sexual activity in the presence of a child under 16 constituted by the watching of pornography (charges 5 and 6). No verdict was taken in relation to an additional charge of sexual assault of a child under 16 (charge 8), which was an alternative to charge 7.
[2]Crimes Act 1958, s 49F(1).
[3]Crimes Act, s 49D(1).
[4]Crimes Act, s 50C(1).
On 27 April 2021, a County Court judge sentenced the applicant to a total effective sentence of 10 years’ imprisonment and fixed a non-parole period of 6 years.[5]
[5]DPP v [Duesbury] (County Court, 27 April 2021, Judge Leighfield). See [94] below.
The applicant seeks leave to appeal against his conviction on the following grounds:
[1]The conviction on charge 7 is unreasonable and cannot be supported having regard to the evidence.
[2]The [conviction] on charge 9 is unreasonable and cannot be supported having regard to the evidence.
[3]An irregularity in the conduct of the trial caused a substantial miscarriage of justice on charges 4 and 7 – 9.
The applicant’s written case sets out the following particulars of ground 3:
(a)In his final address, the prosecutor traversed aspects of the evidence of the complainants without having challenged that evidence in the trial.
(b)Faced with a conflict of evidence, the jury was permitted to reason towards guilty from evidence it preferred ‘on balance’.
For the reasons that follow, we will:
(a)grant leave to appeal on ground 1 but refuse leave to appeal on grounds 2 and 3;
(b)allow the appeal on ground 1, set aside the conviction for charge 7 and enter a judgment of acquittal for charge 7; and
(c)resentence the applicant as set out at [97] below.
Circumstances of the offending
The complainants, Samantha and Ingrid,[6] are the applicant’s granddaughters. They are identical twins and were aged 7 at the time of the charged offending, namely, the evening of Thursday 31 January 2019.
[6]Samantha and Ingrid are pseudonyms, as are the names of all the witnesses to whom we refer.
The applicant lived in a one bedroom flat comprised of a bed, a sofa/fold-up bed, a kitchen and a bathroom. The complainants stayed at the applicant’s flat on a regular basis. At those times, he looked after them by providing meals, taking them to school on school days and participating in other activities with them outside school hours, such as taking them to the local park.
Earlier in the week of the offending, the applicant drove the complainants to his flat. On the evening of 31 January 2019, the complainants had dinner and a shower. The applicant then had a shower.
According to the prosecution case:
(a)The applicant was wearing pyjama shorts but no underwear when he came out of the bathroom.
(b)The applicant took off his shorts and masturbated in front of the complainants (charge 1, Samantha; charge 2, Ingrid).
(c)The applicant then made Samantha and Ingrid touch his penis (charge 3, Samantha; charge 4, Ingrid). The evidence in support of charge 4 is discussed in detail below.
(d)At the applicant’s request, Samantha took off her underpants and the applicant licked his finger and inserted it in her vagina (charge 7). The evidence in support of charge 7 is discussed in detail below.
(e)Ingrid lowered her underpants (instead of taking them off) and the applicant touched Ingrid’s vagina on the outside with his finger (charge 9). The evidence in support of charge 9 is discussed in detail below.
(f)The applicant later lingually penetrated Samantha’s vagina while she was asleep on the fold-up bed, waking her up (charge 10).
(g)After the offending, the applicant told the complainants that what had occurred was a secret.
(h)The next day, Friday 1 February 2019, the complainants returned home after school finished. Later in the evening, Samantha was at her home with her aunt Tina while the rest of the family was out. Samantha told Tina that she and the applicant had a secret but it was ‘rude’. She then told Tina what he had done to her and Ingrid. When the complainants’ father came home with Ingrid, Tina told him about her conversation with Samantha. He then asked the complainants what had happened while they were at the applicant’s flat. When the complainants’ mother returned home late that night, their father and Tina told her about their conversations with the complainants. On the following day, Saturday 2 February 2019, the complainants had a further conversation with their parents about their secret with the applicant. On Monday 4 February 2019, the complainants told a family friend, Erin, about the ‘secret’ with the applicant. The evidence relating to the complaints made by the complainants is discussed in detail below.
On 5 February 2019, the complainants’ mother and Erin took them to the police station. They gave visual audio recorded evidence (‘VARE’) on Wednesday 6 February 2019, that is, within a week of the alleged offending. They gave evidence at a special hearing on 5 March 2020, 13 months after the alleged offending. They were then 8 years of age.
The applicant was arrested on 6 February 2019 and gave a ‘no comment’ interview.
Evidence relating to charge 7, digital penetration of Samantha’s vagina
The following evidence relating to charge 7 (digital penetration of Samantha’s vagina) is also relevant to the alternative charge, namely, charge 8 (touching of Samantha’s vagina).
In her VARE, Samantha stated that the applicant did not put his ‘rude finger’ into her. She said that the applicant took her ‘undies’ off and started licking her vagina when she was sleeping, but did not say that she took off her ‘undies’ at any time during that evening. At the special hearing, she confirmed that what she said in her VARE was true and expressly stated that she did not take off her ‘undies’. She did not say that the applicant touched her vagina, other than licking it.
In her VARE, Ingrid stated that, after the shower, Samantha took off her ‘undies’ and the applicant licked his finger and touched Samantha’s vagina and then touched her vagina after she pulled her pyjama shorts down to her knees. She said that she saw the applicant touch Samantha’s vagina on the inside and the outside. She also said that he ‘poked it inside’. At the special hearing, in cross‑examination, Ingrid said that she did not see Samantha take her ‘undies’ off or see the applicant touch Samantha’s vagina because Samantha was under the blanket, but Samantha had told her that she had taken off her ‘undies’ and Samantha also said that the applicant touched her vagina. Later, Ingrid stated that she had not spoken to Samantha afterwards about what had happened at the applicant’s flat, but that Samantha had ‘told our auntie’ what had happened. In re‑examination, Ingrid agreed that she had told the police (in her VARE) that the applicant licked his finger ‘and went and touched [Samantha’s vagina]’ and that what she had said to the police was true.
The prosecution also adduced complaint evidence in support of charge 7, which is set out below:
(a)In her VARE, Samantha stated:
(i)She told Tina on Friday 1 February 2019 ‘[her] secret’. She saw Tina tell it to her father, then her father told her mother.
(ii)She told Erin and Erin’s mother ‘everything’ on Saturday 2 February 2019.
(b)At the special hearing, Samantha reiterated that she told Tina her ‘secret’ and about things the applicant had done to her.
(c)In her VARE, Ingrid stated that Samantha told Tina the ‘secret’. As stated above, at the special hearing, Ingrid stated that Samantha had ‘told our auntie’ what had happened.
(d)Tina stated that, on Friday 1 February 2019, Samantha told her that the applicant ‘touches her “down there”’ and pointed to her vagina. Tina was not cross‑examined on this evidence.
(e)Erin stated that, on Monday 4 February 2019, she had a conversation with both Samantha and Ingrid. She said that Samantha told her that the applicant ‘touched our rude part’, that the applicant put his hand on her ‘rude part’ and that she did not have undies on but just pyjamas. Erin said that Ingrid told her that he ‘did this’ and then Ingrid stuck up her middle finger, licked it, put it down towards the front of her vagina and repeated a curling motion with her finger. Erin also stated that she asked Ingrid whether the applicant had tickled her, and Ingrid said ‘yes’. Erin was not cross-examined at all.
(f)The complainants’ father stated that both complainants told him on the evening of Friday 1 February 2019 that the applicant had touched them on the vagina. He was not cross-examined at all.
(g)The complainants’ mother stated that, on Saturday 2 February 2019, the complainants told her that the applicant ‘touches our rude part’. She was not cross-examined on this evidence.
We note that the complainants’ parents, Tina and Erin did not say in their evidence that the complainants had told them that the applicant had digitally penetrated the complainants’ vaginas.
Evidence relating to charge 9, touching of Ingrid’s vagina
As we have already stated, in her VARE, Ingrid stated that, after the shower, Samantha took off her ‘undies’ and the applicant licked his finger and touched Samantha’s vagina and then touched her vagina after she pulled her pyjama shorts down to her knees. Ingrid clarified that she still had her ‘undies’ on and that the applicant touched ‘the outside’ of her vagina. At the special hearing, in cross‑examination, Ingrid stated that the applicant did not touch her on the vagina. In re‑examination, she stated that she did not tell the police (in her VARE) that the applicant touched her vagina. She also said that she was not sure if she had told the police that the applicant touched her vagina after touching Samantha’s vagina. She then said that what she had told the police was true.
In her VARE, Samantha stated that the applicant licked his ‘rude finger’ and put it on Ingrid’s vagina. At the special hearing, in cross-examination, Samantha said that she did not see the applicant touch Ingrid’s vagina, but Ingrid had woken her up to tell her about it. The prosecutor did not re-examine Samantha.
The complaint evidence in support of charge 7 set out at [15] above is also relevant to charge 9.
Evidence relating to charge 4, Ingrid touching the applicant’s penis
In her VARE, Ingrid stated that the applicant forced her to touch his ‘doodle’. She explained that he grabbed her hand, which she tried to pull away, and he pulled it ‘real hard’ and made her put it on his penis. She said that he ‘just left it’ on his penis and then she took it off. At the special hearing, Ingrid was not asked in cross‑examination or re‑examination about touching the applicant’s penis.
In her VARE, Samantha stated that she held the applicant’s ‘dick’ because he said to do so and then he got Ingrid to do the same. She said that, after the applicant put his finger on Ingrid’s vagina, he grabbed her hand and put it on his ‘dick’. She said that Ingrid did nothing. At the special hearing, in cross-examination, Samantha stated that she did not see Ingrid touch the applicant on the ‘dick’, but Ingrid told her this had occurred. As stated above, the prosecutor did not re-examine Samantha.
The prosecution also adduced complaint evidence in support of charge 4, which is set out below:
(a)As set out at [15(a) to (c)] above, in their VAREs and at the special hearing, Ingrid and Samantha stated that Samantha made complaints to Tina, Erin and Erin’s mother.
(b)Erin stated that Samantha told her that the applicant made the complainants touch his ‘rude part’. As we have already stated, Erin was not cross-examined at all.
(c)The complainants’ father stated that, on Friday 1 February 2019, the complainants told him that they touched the applicant’s penis. As we have already stated, the complainants’ father was not cross-examined at all.
(d)The complainants’ mother stated that, on Saturday 2 February 2019, the complainants told her that the applicant ‘lets us touch [his] rude part’. The complainants’ mother was not cross-examined on this evidence.
The applicant’s record of interview and defence at trial
As appears from [11] above, the applicant gave a ‘no comment’ interview with police. He did not give evidence. His defence at trial was that the charged offending did not occur.
Legal principles relevant to grounds 1 and 2
Grounds 1 and 2 rely upon s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), which provides that the Court of Appeal ‘must allow [an] appeal against conviction if the appellant satisfies the court that … the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
Section 276(1)(a) of the CPA requires this Court to ask itself whether we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt upon the whole of the evidence that the applicant was guilty of charges 7 and 9.[7] In M v The Queen, the majority observed:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[8]
[7]M v The Queen (1994) 181 CLR 487, 493, 494–5 (‘M’).
[8](1994) 181 CLR 487, 494–5 (citations omitted).
In Pell v The Queen, the High Court endorsed the approach in M, and said:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[9]
[9](2020) 268 CLR 123, 145 [39] (citations omitted).
In the present case, in relation to charges 7 and 9, the applicant contends that, even if the complainants’ evidence is accepted as being credible and reliable, when it is considered as a whole, it is not sufficient to establish, beyond reasonable doubt, that the acts the subject of those charges occurred.
Thus, the critical issue in the present case in respect of charges 7 and 9 is whether, considered in its entirety:
(a)evidence referable to charge 7 could support a finding that the applicant digitally penetrated Samantha’s vagina; and
(b)evidence referable to charge 9 could support a finding that the applicant touched Ingrid’s vagina.
Ground 1: Conviction on charge 7, digital penetration of Samantha’s vagina
Parties’ submissions on ground 1
The applicant submitted that, on the whole of the evidence, it was not open to convict him of charge 7. He contended that the sole source of evidence of the alleged digital penetration of Samantha’s vagina was Ingrid’s VARE. He argued that, although Ingrid’s evidence at the special hearing did not retract her allegation of digital penetration of Samantha, it clarified that the source of the information upon which that allegation was based was Samantha. He submitted that the clarification established that Ingrid understood the questions being asked of her, her memory was not affected by the passage of time and she provided new information about which she was not challenged. According to the applicant, the jury were obliged to experience a doubt about Ingrid’s evidence that the digital penetration occurred, especially in circumstances where the prosecutor did not re-examine Ingrid on this point and eschewed reliance upon the hearsay complaints of each complainant to the other.
The applicant contended that, having regard to the fact that Samantha did not say in her evidence that the applicant had digitally penetrated or touched her vagina and the fact that Ingrid changed her evidence, the complaint evidence upon which the prosecution relied was incapable of filling the gaps in the prosecution case relating to charges 7 (and in the alternative charge 8). That was said to be because the sources of the complaint evidence were Samantha and Ingrid, rather than being independent of them. It was further said that, because the complaint evidence constituted a prior inconsistent statement — rather than a prior consistent statement — it could not be treated as supporting Samantha’s credit.
The applicant argued that, if this Court found that it was not open to convict him of charge 7, it should not substitute a verdict of guilty on charge 8. That was said to be because, although the complaint evidence was unchallenged, the prosecution put its case on the basis that charges 7 and 8 were constituted by the acts described in Ingrid’s VARE and the complaints were evidence of those acts. The applicant further argued that this Court could not be satisfied that the jury must have been satisfied on the evidence that the applicant touched Samantha’s vagina.
The Crown submitted that the evidence in support of charge 7 (and in the alternative charge 8) was not limited to the complainants’ VAREs and re-examination. It contended that, although Samantha did not disclose this incident to police, she told Tina that the applicant touched her vagina; both complainants told their father that the applicant had touched their vagina; both complainants told their mother that the applicant had touched their ‘rude part’; and Samantha told Erin that the applicant touched ‘our rude part’ and put a hand on her ‘rude part’.
The Crown argued that the inconsistencies between the evidence elicited in Samantha’s VARE, cross-examination, re-examination and complaint evidence were not such that the jury ought to have entertained a reasonable doubt about guilt. It submitted that Samantha’s evidence is not to be examined in a piecemeal fashion; rather, it is the combined effect of all of the evidence that is important. According to the Crown, Samantha’s recollection in February 2019, when she made her complaints and gave her VARE, was far superior to March 2020, at the special hearing. The Crown contended that the jury were properly directed regarding the assessment of witnesses and, in particular, the child witnesses. It argued that the jury were entitled to accept the accounts given by Samantha in February 2019 to her family, Erin and police.
The Crown submitted that the jury were entitled to reject Ingrid’s evidence at the special hearing that the source of her information concerning charge 7 was Samantha, and accept her evidence in her VARE. That was said to be so for three reasons. First, there was no suggestion of collusion or infection, given that Ingrid stated in cross‑examination that she had never spoken to Samantha about what had happened at the applicant’s flat. Secondly, Ingrid’s VARE was a contemporaneous account. Thirdly, in re-examination, Ingrid accepted that what she had said in her VARE was true, which was all the prosecutor could ask her to confirm given the boundaries for asking questions in the special hearing.
Decision on ground 1
In our opinion, ground 1 is made out.
Charge 7 alleged that the applicant ‘intentionally sexually penetrated [Samantha], a person he [knew] to be his lineal descendant, in that [he] introduced his finger into [her] vagina’. Our summary of the evidence at [13]–[16] above indicates the following:
(a)Samantha did not at any stage — whether during the VARE, at the special hearing, in any complaint to anyone or otherwise — state that the applicant had digitally penetrated her vagina.
(b)Ingrid stated in her VARE that the applicant had touched Samantha’s vagina on the inside and the outside and had ‘poked it inside’. However, during cross‑examination at the special hearing, she stated that she did not see this incident but Samantha had said what had occurred. In re-examination, she agreed that she had told the police (in her VARE) that the applicant had touched Samantha’s vagina.
(c)Whilst there was complaint evidence of the applicant touching Samantha’s vagina, there was no such evidence of the applicant digitally penetrating her vagina.
In circumstances where, within a week of the alleged offending, the alleged victim (Samantha) in effect denied that the alleged offending had occurred and where the only witness to the alleged offending (Ingrid) dramatically altered her evidence from observing it to being told about it, the jury must have had a reasonable doubt as to whether the alleged offending had occurred.
The dramatic alteration in Ingrid’s evidence cannot be explained on the basis that the evidence she gave in the VARE was more reliable because it took place within a week of the alleged offending whereas the special hearing took place 13 months later. That explanation is not apt because Ingrid did not say at the special hearing that she could not remember what had occurred or had an incomplete recollection of the details of what had occurred. Rather, the details remained the same but the source of her knowledge of those details changed from direct observation to hearsay, namely, statements attributed to Samantha. The statements attributed to Samantha cannot be regarded as reliable in circumstances where Samantha, within days of its alleged occurrence, in effect denied that the offending took place. We also note that the prosecution expressly eschewed reliance upon evidence of complaints as between the complainants.
We are of the view that the fact that, in re-examination, Ingrid agreed that she told the police (in her VARE) that the applicant touched Samantha’s vagina is insufficient to dispel the reasonable doubt about whether the alleged offending had occurred. That is because Ingrid’s statement in re-examination did not specify whether she saw the touching or was told about it. Even if Ingrid is taken to be saying that she told police that she saw the applicant touch Samantha’s vagina, her statement in re‑examination can be construed as indicating that, whilst that was her position in her VARE, her current position is that she did not see the touching but heard about it from Samantha.
Accordingly, the conviction on charge 7 will be set aside.
The question then arises as to whether the Court should enter a judgment of acquittal pursuant to s 277(1)(b) of the CPA or substitute a conviction for the alternative charge of sexual assault of a child under 16 constituted by the applicant touching Samantha’s vagina (which was included in the indictment as charge 8) pursuant to s 277(1)(c).
Section 277(1) of the CPA relevantly provides as follows:
277 Orders etc. on successful appeal
(1)If the Court of Appeal allows an appeal under section 274, it must set aside the conviction of the offence (offence A) and must—
(a)order a new trial of offence A; or
(b)enter a judgment of acquittal of offence A; or
(c)if—
(i)the appellant could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury or, in the case of a plea of guilty to offence A, the trial judge must have been satisfied of facts that prove the appellant was guilty of offence B—
enter a judgment of conviction of offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or …
In our opinion, the appropriate disposition of the appeal in relation to ground 1 is the entry of a judgment of acquittal rather than the substitution of a conviction for sexual assault of a child under 16. That is because, in substance, the evidence of the applicant touching Samantha’s vagina suffers from the same deficiencies as the evidence of penetration of her vagina. That is so for the following reasons:
(a)Samantha did not state in her VARE or at the special hearing that the applicant had touched her vagina. She also denied taking off her underwear.
(b)Whilst in her VARE Samantha stated that she told Tina ‘[her] secret’ (which she reiterated at the special hearing) and told Erin and Erin’s mother ‘everything’, she did not expressly say that she complained to anyone that the applicant had touched her vagina. There was other offending alleged against Samantha, namely, that the applicant masturbated in front of her and that she touched his penis, to which she could have been referring as her ‘secret’.
(c)Although Ingrid stated in her VARE that she saw the applicant touch Samantha’s vagina, at the special hearing, she said that she did not see this but that Samantha had said that the applicant touched her vagina. Our analysis of Ingrid’s evidence at [38]–[39] above in relation to charge 7 applies equally to charge 8.
(d)Although the complaint evidence of Tina, Erin and the complainants’ parents included touching of Samantha’s vagina by the applicant, Samantha and Ingrid are the sources of the complaints; thus, the complaint evidence cannot overcome the deficiencies in the evidence of Samantha and Ingrid to which we have already referred.
Accordingly, we are not persuaded that the jury must have been satisfied on the evidence that the applicant had touched Samantha’s vagina. It follows that we are unable to order that a conviction on charge 8 be entered.
Ground 2: Conviction on charge 9, touching of Ingrid’s vagina
Parties’ submissions on ground 2
The applicant submitted that, on the whole of the evidence, it was not open to convict him of charge 9. That was said to be because Ingrid’s evidence changed from alleging that the applicant touched her vagina (in her VARE) to denying that it happened (at the special hearing); and Samantha’s evidence changed from stating that she witnessed the applicant touching Ingrid’s vagina (in her VARE) to saying that she did not witness it but was told that he did by Ingrid (at the special hearing). The applicant contended that Ingrid’s acceptance at the special hearing that what she said to police was true could not detract from her denial of vaginal touching because she did not accept that she had told police that he touched her vagina. The applicant argued that the question giving rise to the denial was an open one and was clearly referable to the alleged act.
According to the applicant, his submissions regarding Ingrid’s change in her evidence in relation to charge 7 also applied to Samantha’s change in her evidence in relation to charge 9.[10] He contended that, having regard to the evidence as a whole, the jury were obliged to have a doubt that the offending the subject of charge 9 occurred.
[10]See [29] above.
The applicant argued that he did not have to prove that ‘no’ means ‘no’, nor that Ingrid’s denial was a retraction of evidence previously given or complaints previously made. He submitted that it was sufficient that the denial was inconsistent with guilt. He contended that the prosecution was required to support its invitation to reject Ingrid’s denial by establishing through re-examination a rational basis for doing so. He argued that pointing to the passage of time before the special hearing was, in the circumstances of this case, insufficient.
The Crown submitted that it was open to the jury upon all of the evidence to find the applicant guilty of the offending the subject of charge 9. It contended that the jury were properly directed regarding the assessment of witnesses and, in particular, the child witnesses. It argued that it was open to the jury to conclude that Ingrid was a truthful witness and consider the evidence as a whole. It submitted that Ingrid’s evidence was clearly more reliable closer to the event, when she gave a consistent account to numerous people over a number of days. It emphasised that, at the special hearing, Ingrid adopted the VARE and confirmed that what she said to police was true. According to the Crown, given the constraints of the special hearing, the prosecutor could do no more than he did in re-examination to confirm the evidence in support of charge 9 as stated in the VARE.
Decision on ground 2
In our opinion, ground 2 is not made out.
Charge 9 alleged that the applicant touched Ingrid on the vagina. Our summary of the evidence at [17]–[19] above indicates the following:
(a)In her VARE, Ingrid stated that the applicant touched her vagina after touching Samantha’s vagina. At the special hearing, in cross-examination, she stated that the applicant did not touch her on the vagina. In re-examination, she initially stated that she did not say in her VARE that the applicant had touched her vagina, she then said that she was not sure about this and later stated that what she had told the police was true.
(b)In her VARE, Samantha said that the applicant licked his ‘rude finger’ and touched Ingrid’s vagina. At the special hearing, in cross-examination, Samantha said that she did not see the applicant touch Ingrid’s vagina but Ingrid had woken her up to tell her about it.
(c)Erin stated that Samantha told her that the applicant had ‘touched our rude part’ and that Ingrid had demonstrated with her finger that the applicant had placed his finger in front of her vagina.
(d)The complainants’ parents both stated that the complainants told them that the applicant touched them on the vagina.
Unlike charge 7, the victim of the alleged offending the subject of charge 9 (Ingrid) gave clear evidence in her VARE — within a week of the alleged offending — that the applicant touched her on the vagina. There was also evidence that, within a few days of the alleged offending, she told both of her parents and Erin of the touching. Samantha also stated in her VARE that she saw the applicant touch Ingrid’s vagina. On the basis of this evidence, it was clearly open to the jury to be satisfied beyond reasonable doubt about the applicant’s guilt in relation to charge 9.
The question is whether the changes in the evidence of Ingrid and Samantha at the special hearing were such as to necessarily create a reasonable doubt about the applicant’s guilt. In our opinion, that question must be answered in the negative.
It was open to the jury to conclude that Ingrid’s recollection of the events that occurred at the applicant’s flat on 31 January 2019 was accurate in the week after those events, when she gave her VARE and made complaints to her parents and Erin, and that her memory was less reliable when she gave evidence at the special hearing 13 months later.
For the reasons set out at [38] above, the change in Samantha’s evidence from direct observation to hearsay cannot be explained by the passage of time. However, any reservation that the jury may have had about the change in Samantha’s evidence could have been dispelled by the evidence of three adults (the complainants’ parents and Erin) who gave unchallenged evidence that both Samantha and Ingrid told them that the applicant had touched Ingrid’s vagina.
Accordingly, there was a legitimate path of reasoning on the evidence to support a finding of guilt beyond reasonable doubt in relation to charge 9.
Ground 3: Whether irregularity in the conduct of the trial; charges 4, 7 and 9
The evidence relating to charges 4, 7 and 9 is set out at [13]–[22] above. Because we have concluded that the conviction on charge 7 is to be set aside, we will confine our discussion of ground 3 to charges 4 and 9.
Statutory provisions relevant to ground 3
Sections 32, 44N and 54D of the Jury Directions Act 2015 (‘JDA’) set out directions that may be given to a jury. They relevantly provide as follows:
32 Direction on unreliable evidence
(1)The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on evidence of a kind that may be unreliable.
…
(3)In giving a direction referred to in subsection (1), the trial judge must—
(a)warn the jury that the evidence may be unreliable; and
(b)inform the jury of—
(i)the significant matters that the trial judge considers may cause the evidence to be unreliable; or
(ii)if the direction concerns evidence given by a child, the significant matters (other than solely the age of the child) that the trial judge considers may make the evidence of the child unreliable; and
(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
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44N Direction on language and cognitive skills of child witness
(1)If, before any evidence is adduced in the trial and after hearing submissions from the prosecution and defence counsel …, the trial judge considers that the reliability or credibility of a child witness is likely to be in issue, the trial judge—
(a)must direct the jury in accordance with subsection (4) before any evidence by the child is adduced, unless there are good reasons for not doing so; and
…
(b)may give the direction before any evidence is adduced in the trial.
(2)If, at any other time during the trial, the trial judge considers that the reliability or credibility of a child witness is likely to be in issue, the trial judge must direct the jury in accordance with subsection (4) as soon as is practicable, unless there are good reasons for not doing so.
(3)The trial judge may repeat a direction under this section at any time in the trial.
(4)In giving a direction under this section, the trial judge must inform the jury that—
(a)children can accurately remember and report past events; and
(b)children are developing language and cognitive skills, and this may affect—
(i)whether children give a detailed, chronological or complete account; and
(ii)how children understand and respond to the questions they are asked; and
(c)experience shows that, depending on a child’s level of development, they—
(i)may have difficulty understanding certain language, whether because that language is complicated for children or complicated generally; and
Examples
1Hypothetical, ambiguous, repetitive, multi-part or yes/no questions.
2The use of the passive voice, negatives and double negatives.
(ii)may have difficulty understanding certain concepts, whether because those concepts are complicated for children or complicated generally; and
Example
Relative concepts such as time, duration, measurement or frequency.
(iii)may not request the clarification of a question they do not understand; and
(iv)may not clarify an answer they have given that has been misunderstood.
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54D Direction on difference in complainant’s account
(1)If, after hearing submissions from the prosecution and defence counsel …, the trial judge considers that there is evidence in the trial that suggests a difference in the complainant’s account of the offence charged that is relevant to the complainant’s credibility or reliability, the trial judge must direct the jury in accordance with subsection (2).
(2)In giving a direction referred to in subsection (1), the trial judge must inform the jury that—
(a)it is up to the jury to decide whether the offence charged, or any alternative offence, was committed; and
(b)differences in a complainant’s account may be relevant to the jury’s assessment of the complainant’s credibility and reliability; and
(c)experience shows that—
(i)people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; and
(ii)trauma may affect different people differently, including by affecting how they recall events; and
(iii)it is common for there to be differences in accounts of a sexual offence; and
Example
People may describe a sexual offence differently at different times, to different people or in different contexts.
(iv)both truthful and untruthful accounts of a sexual offence may contain differences; and
(d)it is up to the jury to decide—
(i)whether or not any differences in the complainant’s account are important in assessing the complainant’s credibility and reliability; and
(ii)whether the jury believes all, some or none of the complainant’s evidence.
(3)The trial judge may repeat a direction under this section at any time in the trial.
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Submissions of counsel at trial and the trial judge’s charge relevant to ground 3
For the purposes of the ‘ground rules’ hearing on 4 March 2020, the Court received intermediary assessment reports in relation to each complainant. The reports stated that the complainants would likely benefit from the use of an intermediary to assist with the communication of questions to them. The report on Samantha stated that she presented as ‘an anxious child who worries, and when anxiously hyperaroused [she] was observed to disengage and cease communicating effectively’.
The judge conducting the ‘ground rules’ hearing (who did not conduct the trial) directed pursuant to s 389E(2)(c) of the CPA that the parties could put their cases to the complainants and also ask them about inconsistencies in their evidence. No direction was made pursuant to s 389E(2)(f) dispensing with compliance with the rule in Browne v Dunn.[11]
[11](1893) 6 R 67.
Before the jury heard the evidence of the complainants, the trial judge gave a direction under s 44N of the JDA. At the conclusion of the evidence, during the discussion between the trial judge and counsel concerning directions to be given under the JDA, the prosecutor and defence counsel agreed that the judge should repeat her direction under s 44N of the JDA. Defence counsel requested a direction under s 54D of the JDA and informed the trial judge that she did not require a direction under s 32 of the JDA.
In his closing address, the prosecutor acknowledged that there were inconsistencies in the complainants’ statements in their VAREs and their evidence at the special hearing. He invited the jury to consider those discrepancies in the context of the delay between the VAREs and the special hearing, and to look at the totality of the evidence. The prosecutor also relied upon the complaint evidence as supportive of the commission of the charged offending.
In relation to charge 4, the prosecutor submitted to the jury that they could be satisfied beyond reasonable doubt that Ingrid touched the applicant’s penis on the basis of Ingrid’s evidence, Samantha’s evidence in her VARE and the complaint evidence. He stated that, although Samantha said at the special hearing that she did not see Ingrid touch the applicant’s penis, the jury could accept her evidence in her VARE as true and reliable.
In relation to charge 9, the prosecutor stated that the jury could ‘balance’ the inconsistent evidence, as follows:
Charge 9 is the sexual touching of [Ingrid]. [Samantha] said that [the applicant] licked his rude finger and touched her rude part on [Ingrid’s] vagina. [Ingrid] said ‘After touching [Samantha], he’d done that to mine too. Touched [Samantha], then mine. Touched the outside of it and she had undies on.’ [S]he told [her father], she told [her mother] and she also told [Erin] about this and … you need to balance that against the evidence which is given in the special hearing where [Ingrid] — where [Samantha] says [Ingrid] told her [she] did not see it. It is different from what was said in the February 2019 VARE where she’s quite clear about what she has said.
Similarly, [Ingrid] in the special hearing denies that [the applicant] touched her vagina. You balance that with what happened at the VARE and the multiple people who she has told and has been told about what happened to her.
In her closing address to the jury, defence counsel highlighted the inconsistencies between the complainants’ evidence in their VAREs and their evidence at the special hearing. She stated that ‘[t]hey did change their stories very dramatically but it’s up to you to analyse them’.
In her charge, the trial judge directed the jury regarding the assessment of witnesses and repeated her earlier direction pursuant to s 44N of the JDA. The trial judge stated that it was a matter for the jury to decide which parts — if any — of the complainants’ evidence they accepted and how much weight to give to any particular evidence. The trial judge also gave conventional directions regarding inconsistent accounts by the complainants[12] and the onus and standard of proof. Furthermore, even though neither the prosecutor nor defence counsel requested the trial judge to direct the jury that they were not to treat the complaint evidence as evidence that was independent of Samantha and Ingrid, the trial judge gave such a direction.
[12]See JDA, s 54D.
In summarising the closing addresses, the trial judge referred to the prosecutor’s observations about ‘balancing’ competing evidence without comment.
Defence counsel did not take any exception to any aspect of the prosecutor’s closing address or the trial judge’s charge.
Parties’ submissions on ground 3
The applicant submitted that, although the prosecutor in his closing address fairly directed the jury’s attention to the discrepancies in the evidence, in relation to charge 4, he invited the jury to accept Samantha’s VARE and her complaints as evidence — independent of Ingrid’s evidence — of the applicant making Ingrid touch his penis. The applicant contended that this necessarily involved rejecting Samantha’s explanation in the special hearing that she was merely reporting what Ingrid had told her.
According to the applicant, the prosecutor relied upon a case in relation to charges 4 and 9 that he had not squarely put to the complainants. He argued that the prosecutor was obliged to, but did not, provide an opportunity for the complainants to respond to the contention that their evidence was wrong, before he could invite the jury to reject substantial parts (but not all) of their evidence. In particular, the applicant submitted that the prosecutor was obliged to, but did not, do the following concerning charges 4 and 9:
(a)in relation to Samantha, give her a chance to address the imputation that she did see Ingrid touch the applicant’s penis (charge 4) or the applicant touch Ingrid’s vagina (charge 9) and that her evidence in cross-examination was wrong; and
(b)in relation to Ingrid, give her a chance to respond to the imputation that her evidence in cross‑examination that the applicant did not touch her vagina was wrong (charge 9).
The applicant contended that the prosecutor’s omission caused a substantial miscarriage of justice. That was said to be because the jury were invited to reject the evidence arising in the special hearing, without a proper foundation for doing so being laid in the evidence.
The applicant argued that, in relation to charges 4 and 9, the prosecutor incorrectly told the jury to ‘balance’ the evidence in the complainants’ VAREs and the complaint evidence ‘with’ or ‘against’ the conflicting evidence from the special hearing. That statement was said to be incorrect because the task of the jury was not to determine which evidence it preferred on balance but whether, having regard to all the evidence, the offences were established beyond reasonable doubt. The applicant submitted that he was entitled to an acquittal if the complainants’ evidence at the special hearing (and generally) gave rise to a reasonable doubt, and that it was not necessary that the scales tip in favour of the evidence at the special hearing.
The applicant contended that the trial judge reiterated in her charge, without any criticism, the concept of ‘balancing’ competing evidence when explaining the prosecution’s submissions in relation to charge 9. He argued that, whilst the trial judge’s directions about the assessment of evidence generally and the burden of proof were otherwise orthodox, there remained a substantial risk that the jury approached their task on the basis that they were required to compare alternative versions of what occurred and choose between them.
The applicant acknowledged that no exception was taken by defence counsel to the prosecutor’s closing address or to the charge. He submitted that this was relevant but not determinative of the success of ground 3. He contended that the absence of objection simply reflected the inherent difficulty of avoiding improper questions while complying with the rule in Browne v Dunn, which was developed without regard to the communication needs of vulnerable witnesses.
The Crown submitted that there had been no irregularity in the conduct of the trial that caused a substantial miscarriage of justice in relation to charge 4. That was said to be because both complainants gave evidence of the offending the subject of this charge in their VAREs and their complaints to their parents and Erin, and Ingrid was not cross‑examined in relation to charge 4.
The Crown acknowledged that, at the special hearing, Samantha stated that she did not see Ingrid touch the applicant’s penis. It contended that it was not surprising that the prosecutor chose not to re-examine Samantha in the light of the intermediary assessment report identifying numerous difficulties in questioning her. It argued that, having identified the conflict in Samantha’s evidence in his closing address, the prosecutor was able to rely upon the evidence of Ingrid and the complaint witnesses.
The Crown submitted that there had also not been an irregularity in the conduct of the trial regarding charge 9 that caused a substantial miscarriage of justice.
The Crown contended that the prosecutor did not traverse the evidence of a Crown witness — namely, Samantha — but chose not to risk overwhelming a child witness of limited understanding with a complex line of questioning.
The Crown argued that the prosecutor’s use of the word ‘balance’ when dealing with the evidence in the VAREs, complaint witnesses and the special hearing was no more than an argument that it was for the jury to assesses and determine what weight to give to a particular piece of evidence. The Crown submitted that the prosecutor fairly identified the conflict in the evidence and urged the jury to accept the evidence as contained in the VAREs, which was supported by the complaint witnesses.
The Crown contended that the trial judge clearly directed the jury, in an orthodox fashion, as to how to approach their task. It argued that it was open to the jury to accept the evidence in the VAREs and the complaint evidence of both child witnesses in this matter.
According to the Crown, it is highly relevant that defence counsel did not make any applications at the close of the Crown case with respect to charges 4 and 9, nor take any objections to the prosecutor’s address or the trial judge’s charge. That was said to be because defence counsel, imbued with the atmosphere of the trial and the experience of questioning the child witnesses, was best placed to identify any problems with the Crown case and the prosecutor’s address and what significance, if any, it had in the trial.
Decision on ground 3
In our opinion, neither limb of ground 3 is made out.
There is no merit in the applicant’s complaint about the prosecutor inviting the jury to prefer the complainants’ evidence in their VAREs to their evidence in cross‑examination at the special hearing, without putting the inconsistencies to them and giving them an opportunity to clarify their evidence in re‑examination.
In relation to charge 4, the complainant was Ingrid. She stated in her VARE that the applicant forced her to touch his ‘doodle’ and was not cross-examined on this evidence. Accordingly, there was nothing for the prosecutor to put to Ingrid in relation to this charge in re‑examination.
It is true that Samantha’s evidence regarding charge 4 changed from direct observation (in her VARE) to being told of the offending by Ingrid (in cross‑examination at the special hearing). It is also true that the prosecutor sought to rely upon Samantha’s evidence in her VARE in support of charge 4 without re‑examining her in relation to that change. However, it is readily apparent from the transcript of Samantha’s evidence at the special hearing that she could not recall many of the events of the evening of 31 January 2019 and was confused in respect of some of the questions that were put to her. It must also be borne in mind that the intermediary assessment report concluded that, when Samantha was anxious, she disengaged and ceased to communicate effectively. In these circumstances, it was unlikely that giving Samantha an opportunity in re‑examination to explain why her evidence in cross-examination differed from her evidence in her VARE would have provided any meaningful clarification.
The prosecutor would have been aware of this and also would have been concerned that further questioning of Samantha might cause her distress. Balancing these considerations and the fact that the evidence independent of Samantha in support of charge 4 was strong, the prosecutor made a proper forensic decision not to re‑examine Samantha in relation to charge 4.
Furthermore, the inconsistencies in Samantha’s evidence were clearly identified in defence counsel’s closing address. The trial judge gave appropriate directions to the jury about how such inconsistencies could be used by them and made it clear that it was a matter for them how they assessed each witness’s evidence and whether they accepted some or all of the witness’s evidence.
Similar considerations apply in relation to Samantha’s evidence insofar as it concerned charge 9.
In relation to Ingrid’s evidence concerning charge 9, the prosecutor made an effort in re-examination to seek clarification from her regarding her evidence in her VARE, which differed from her evidence in cross-examination at the special hearing. It was clear from Ingrid’s inconsistent responses regarding what she had told police that she was confused about her recollection. In our opinion, the prosecutor made an appropriate forensic decision that to seek to comply with the rule in Browne v Dunn in the same manner as if Ingrid was an adult would not have produced any meaningful clarification.
We now turn to the second limb of ground 3, namely, the prosecutor’s use of the word ‘balance’ in his final address.
In our opinion, there is no merit in the second limb.
In the context in which the word ‘balance’ was used by the prosecutor, the jury would have understood it as meaning that, in assessing the complainants’ VAREs on the one hand, and their evidence in cross-examination on the other hand, in relation to any charge, the jury were to determine the relative weight to be given to any component of the complainants’ evidence in the light of the evidence as a whole. This was consistent with the trial judge’s directions as to how the jury were to assess the evidence of the witnesses and decide whether to accept all or part of that evidence. In our opinion, the prosecutor’s use of the word ‘balance’ and the trial judge’s repetition of that word in her charge would not have conveyed to the jury that their task was to compare alternative versions of what occurred and choose between them.
The trial judge and defence counsel emphasised to the jury that the onus was on the prosecution to prove each charge beyond reasonable doubt and that no onus of proof applied to the applicant. In these circumstances, there is no realistic prospect that the jury would have understood the word ‘balance’ as permitting them to weigh up evidence in favour and evidence against guilt and to make findings on the balance of probabilities.
It follows from the above discussion that we are not satisfied that there has been any irregularity in the conduct of the applicant’s trial in relation to charges 4 and 9. Accordingly, a substantial miscarriage of justice has not occurred in relation to those charges.
Resentence
The individual sentences imposed by the trial judge and the orders for cumulation she made are shown in the following table:
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Sexual activity in the presence of a child under 16 10 years 12 months — 2 Sexual activity in the presence of a child under 16 10 years 12 months — 3 Sexual assault of a child under 16 10 years 18 months 6 months 4 Sexual assault of a child under 16 10 years 18 months 6 months 7 Sexual penetration of a lineal descendant 25 years 7 years Base 9 Sexual assault of a child under 16 10 years 30 months 15 months 10 Sexual penetration of a lineal descendant 25 years 7 years 9 months Total Effective Sentence: 10 years’ imprisonment Non-Parole Period: 6 years Other Relevant Orders:
1. Sentenced as a serious sexual offender on charges 3, 4, 7, 9 and 10.
2. Sex offender registration for life.
At the hearing of the application for leave to appeal, counsel for the applicant informed the Court that, if the conviction on any charge is set aside, no issue would be taken by the applicant in respect of any of the individual sentences for the remaining charges. Counsel did not demur to a suggestion from the Bench that, in that event, the sentence for charge 10 should become the base sentence. Counsel contended that the cumulation for the other remaining sentences should be reduced and a lower non-parole period should be fixed. The Crown did not make any submissions with regard to resentencing.
The applicant’s counsel did not seek to impugn any aspect of the trial judge’s exercise of the sentencing discretion and did not contend that there had been any material changes in the applicant’s circumstances since he was sentenced.
Having regard to the sentencing considerations relevant to the applicant’s offending and his personal circumstances, we will resentence him as follows:
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Sexual activity in the presence of a child under 16 10 years 12 months — 2 Sexual activity in the presence of a child under 16 10 years 12 months — 3 Sexual assault of a child under 16 10 years 18 months 5 months 4 Sexual assault of a child under 16 10 years 18 months 5 months 9 Sexual assault of a child under 16 10 years 30 months 14 months 10 Sexual penetration of a lineal descendant 25 years 7 years Base Total Effective Sentence: 9 years’ imprisonment Non-Parole Period: 5 years, 4 months
In accordance with s 6D of the Sentencing Act 1991, the applicant is sentenced as a serious sexual offender on charges 3, 4, 9 and 10.
We will confirm the order made by the County Court under the Sex Offenders Registration Act 2004.
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