FAD v The Queen
[2012] VSCA 195
•16 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0269
| FAD | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN, BONGIORNO and OSBORN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 16 August 2012 |
| DATE OF JUDGMENT | 16 August 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 195 |
| JUDGMENT APPEALED FROM | R v FAD (Unreported, County Court of Victoria, Judge Dean, 8 August 2011 (date of verdict) and 15 August 2011 (date of sentence)) |
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CRIMINAL LAW – Conviction – Series of sexual offences against a child – Whether conviction unsafe and unsatisfactory – Whether delay and asserted inconsistencies in and improbability of complainant’s evidence taken together render conviction unsafe and unsatisfactory – Appeal dismissed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Mr M Turner | HBH Legal |
| For the Crown: | Mr B F Kissane | Craig Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will ask Osborn JA to deliver the first judgment.
OSBORN JA:
On 8 August 2011, following a five day trial, the appellant was convicted by a jury of two charges of indecent assault, one charge of sexual penetration of a child under 10, three charges of indecent act with a child under 16 and one charge of sexual penetration of a child under 16. The appellant was acquitted pursuant to s 241 of the Criminal Procedure Act 2009 of one charge of indecent assault in respect of which there was no evidence and was acquitted by the jury of a further charge which alleged an indecent act constituted by smacking on the buttocks (charge 5).
On 16 May 2012, Harper JA granted the appellant leave to appeal on the ground that each conviction is unsafe and unsatisfactory.
Background facts
The appellant is now aged 48. The complainant, RG, was born on 25 September 1986. Her mother, LG, met the appellant when the complainant was approximately two years old. They commenced to live together in 1990 before marrying on 16 June 1993. The convictions relate to alleged sexual assaults which occurred when the family was living on a rural property near Lake Bolac between 1991 and 1994.
The complainant’s evidence was that the offences occurred in a context of regular physical, verbal and sexual abuse by the appellant. The physical abuse included slapping, smacking, dragging the complainant by the hair and pushing her around. The appellant also constantly told her that she was not his child. She said that she both loved and hated the appellant.
She said the appellant touched her inappropriately when she was in kindergarten, Prep, Grade 1 and Grade 2. This occurred irregularly but recurrently.
The first two charges related to an occasion which the complainant said occurred some time when she was in kindergarten (late 1991) or Prep (early 1992). She said the appellant took her into a spare room at their house. The appellant told her to take her pants down and then inserted his finger into her anus, saying that he needed to see whether she had been to the toilet. The penetration lasted for a minute or two (charge 1). It felt really uncomfortable and the complainant felt scared. The complainant told the applicant that she needed to go to the toilet. She did so and when she returned the appellant told her that there was something in her vagina which felt good if you touch it and asked her whether she would like to see what it felt like. The appellant then laid the complainant down on the bed and penetrated the complainant’s vagina with his finger and moved it around inside her (charge 2). The appellant then kissed the complainant and left the room.
On an occasion when the complainant was attending primary school either in Grade Prep or 1 the complainant woke at night to find the appellant was in her bed and the light that she always left on had been switched off. The appellant pulled the complainant’s nightie up, pulled her to the edge of the bed, pulled her legs up so that her bottom was at the same height as his waist and inserted his penis into her anus (charge 4). The complainant was scared because she didn’t know what was going on, she made a noise but the appellant told her to shut up and be quiet. The penetration was painful. It was with something bigger than a finger. Though she remained in pain, she did not scream because she was scared. Afterwards the appellant kissed her on the cheek and said something like ‘good girl’.
The complainant’s evidence was that on another occasion when she was in Grade Prep or 1 she had done something wrong and was taken into her room by the appellant who laid her across his lap. He told the complainant that he had to do it because she had been a bad girl and smacked her on the bare buttocks between five and 10 times (charge 5, of which the appellant was acquitted). The complainant then got off the appellant’s lap and pulled her pants back up. The appellant said he was sorry. The appellant sat the complainant on his lap and rubbed her genitals over her pants (charge 7). The complainant started saying she was sorry that she hadn’t meant it. The appellant then told the complainant to take her pants off again and undid his belt before the complainant sat back on his lap, pulled her back towards him and rubbed his penis against her bottom and vagina (charge 8). During the incident he rubbed her bare buttocks (charge 6).[1]
[1]Evidence of this act was only adduced in cross-examination.
The complainant gave evidence of a further specific occasion when she was in Grade 1 or 2 and woke at the night to find the light off and the appellant pulling the blanket off her. The appellant told her to ‘sshh’, hopped on top of her, started rubbing against her and put his penis inside her vagina (charge 9). He moved his penis in and out for a few minutes before getting off the complainant and telling her to go back to sleep. The complainant’s vagina felt sore and she curled up in a ball and cried herself to sleep. In the following days her vagina was very sore and she told her mother about that pain. On that occasion as on others, she had a swollen and sore vagina and received a thrush infection, for which she was treated.
The complainant’s mother confirmed in evidence that the complainant had suffered from recurrent vaginal thrush as a child, which she had first noticed when the complainant was in Grade 1.
The complainant was cross-examined at some length with respect to detailed aspects of the circumstances of the alleged offending. She did not materially resile from her evidence in chief.
In cross-examination, the complainant agreed, however, that she had been asked by perhaps five or six doctors treating her recurrent thrush whether she or anyone else had put anything in her anus or vagina, and whether she had been the victim of sexual abuse. She said she had always falsely denied such occurrences.
In cross-examination, the complainant further explained that as a child she thought that if she did not evacuate her bowels, the appellant would be unable to insert anything in her anus and so she defecated only about every two weeks. She admitted having told police that she would ‘only take a shit once every four to six weeks’.
Under cross-examination, the complainant’s grandmother confirmed that when the complainant came to stay with her at the relevant time, the complainant would invariably be constipated with impacted hard faeces and would say that she ‘did not want to go’.
The complainant made a statement to police on 23 January 2009. The appellant was interviewed by police on 24 July 2009 and denied all allegations put to him.
Unsafe and unsatisfactory
The appellant appeals on the ground that his convictions were each unsafe and unsatisfactory. The appeal raises the question whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[2] In order to succeed, the appellant must establish that the jury must as distinct from might, have entertained a reasonable doubt about the appellant’s guilt.[3] In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.[4] A verdict will be unsafe and unsatisfactory only if a jury acting reasonably was precluded from returning a guilty verdict.[5]
[2]M v R (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
[3]Libke v R (2007) 230 CLR 559, 596 [113] (Hayne J with whom Gleeson CJ and Heydon J agreed).
[4]M v R (1994) 181 CLR 487, 494.
[5]R v Klamo (2008) 18 VR 644 [40] (Maxwell P).
The appellate court is bound to review the evidence in its entirety. If the evidence leaves the appellate court with the view that ‘there is a significant possibility that an innocent person has been convicted’,[6] unless that possibility is ultimately expelled by making allowances for the advantages enjoyed by the jury in the particular case, the residual doubt felt by the appellate court will be ‘a doubt which a jury ought also to have experienced’.[7] In that event, the appellate court will be bound to set aside a verdict based upon that evidence.
[6]M v R (1994) 181 CLR 487, 494.
[7]Ibid, 494.
This is not a case where the complainant’s evidence at trial was internally inconsistent in material respects or where it was so devoid of circumstantial detail as to be no more than a series of formal allegations lacking credible detail. On its face, it was sufficient to raise a case properly left to the jury.
Nevertheless, the appellant points to a series of matters which, it is submitted, taken together render the verdict unsafe and unsatisfactory. It is convenient to deal with these matters under the following headings:
· Delay between the alleged offending and the date of trial;
· Delay in complaint with respect to the alleged offences and contemporaneous denials of sexual interference;
· Evidence of memory block and unsatisfactory memory on the part of the complainant;
· Deliberately obstructive answers by the complainant to cross-examination;
· The improbability of the offending occurring as alleged in the proximity of the complainant’s mother;
· The improbability of the complainant’s evidence as to her bowel movements;
· Inconsistencies in the complainant’s evidence;
· The complainant’s history of subsequent meetings with the appellant;
· The lack of supportive or corroborative evidence.
Delay between the alleged offending and the trial
The matters in issue were alleged to have occurred between 17 and 20 years prior to the trial. This factor provides the context in which the other matters raised by the appellant must be assessed.
Nevertheless, this is not a case where it can be said that the appellant has suffered specific forensic prejudice as the result of a matter such as the death of a witness. Moreover, the trial judge gave an extended direction to the jury as to the question of delay, including specific directions that the likelihood of distorted memory was increased by delay and that delay may have affected the appellant’s ability to rebut the prosecution case.[8] His Honour’s directions complied with s 61(1A), (1B) and (1C) of the Crimes Act 1958 and s 165B of the Evidence Act 2008.
[8]T326.
Significant delay in complaint and contemporaneous denials of sexual assault
There was undoubtedly significant delay of between 15 and 18 years between the alleged offending and the date of complaint to the police by the complainant. Nevertheless, as s 61(1)(b) of the Crimes Act 1958 makes clear, there may be good reasons for failure to complain in respect of sexual assault. A number of those reasons were elaborated by Redlich JA in The Queen v ERJ:[9]
In cases involving sexual offences, victims may delay in making a complaint about the abuse. The offender will often be a trusted family figure or one upon whom the victim is emotionally dependent. Even where the victim has had some other sexual experience, they may view their relationship with the offender as special. Commonly the victim will have no reference standards with which to judge their experiences apart from those supplied by the offender. Hence the complaint may be delayed for reasons which may include a conviction that there is nothing wrong with or abnormal about the acts. There may be other reasons for delay. The victim may be sworn to secrecy. There may be compulsion to secrecy by threats. There may be imposed or misplaced feelings of responsibility for the acts. The victim may fear family dissolution or punishment of the wrongdoer. There may be misplaced guilt or self blame. And the victim may employ various strategies to cope with the abuse such as repression of the acts so that conscious knowledge of them is concealed, suppression of the acts to avoid conscious recall of the events or even psychological disassociation from the acts.[10] Any of these factors may contribute to delay in making complaint or a delayed conscious recognition that the conduct was wrongful. These are not necessarily explanations that the complainant will articulate in evidence. But the trial judge, in conformity with the statutory obligation should at least draw attention to some of those explanations which in the circumstances of the particular case may be relevant. We must take such possibilities into account in assessing the submission that the verdict is unreasonable or unsafe.[11]
[9][2010] VSCA 61.
[10]The Queen v ERJ [2010] VSCA 61, [49] citing Dr Ben Mathews, ‘Limitation Periods and Child Sexual Abuse Cases: Law, Psychology, Time and Justice, (2003) 11 Torts Law Journal 218, 1.1; Leanne Bunney, ‘Limitations of Actions: Effects on Child Sexual Abuse Survivors in Queensland (1998), 18 The Queensland Lawyer 128, 131; Julia Werren, ‘Civil Litigation and Repressed Memory Syndrome: How does forgetting impact on child sexual abuse cases?’ (2007) 15 Tort Law Review 43, 44.
[11]The Queen v ERJ [2010] VSCA 61, [51].
In the present case, the trial judge gave a careful direction with respect to delay in complaint.
As you will be aware, ladies and gentlemen, the offences in this trial are alleged to have occurred between 1991 and 1994, so that is between [18] or 17 and 20 years ago. You have heard evidence that the complainant did not make her police statement about the offences and her allegations until 2009. Although of course in the accused man's record of interview it will not have escaped you that he, when questioned by the police, said that these allegations had been around for some time and that he was aware of them and that they did not come as any great surprise to him.
That may be of some significance when you are considering whether or not the delay, if there has been a delay in complaint in this case, has caused forensic disadvantage to the accused in the sense of making it more difficult for him to defend himself because he says that he - as I have said - in his interview he said it did not come as any surprise to him. Be that as it may, the evidence is that the complainant did not make her statement to the police until 2009 and that is of course some - you do the arithmetic - 15 or 18 years or so after she alleges that these offences occurred. In those circumstances, I am required to give you directions of law as to how you approach that issue. That is, the issue of delay in complaint.
You may take the delay, if you find there has been a delay, of [RG] in complaining into account when assessing her credibility if you find that this delay is inconsistent with the account of the events that she has given in court. It is for you to determine whether that delay points to any inconsistency in her evidence. If you would have expected a complainant such as [RG] in the circumstances of this case to have complained about the offences more promptly, you may find that her delay or the delay in her complaining is inconsistent with the truth of her account.
It therefore may be able to be used by you in that way as to her credibility when you are determining whether or not you accept the truthfulness of her evidence. This issue may arise both at the time that it is said that the offences have occurred, or after [FAD] and his wife separated and the circumstances of [FAD] controlling the family environment, to use that expression, were somewhat different. That is, that he was no longer present and it would be urged upon you and has been urged upon you on behalf of [FAD] that once he had left the family home and once the marriage had come to an end, there was no reason for the complainant to not complain because he had gone.
If you accept that argument, then it would be open to you to conclude that the delay at that time, that is after he had left - and this is in the late 1990s - after he had left, there was obviously some delay then as well and it would be open to you to conclude that that delay was inconsistent with the truthfulness of her account. That is one side of the story or one side of the coin.
However, ladies and gentlemen, I am required to direct you as a matter of law - and the direction I have just given you in relation to how you might use the delay in complaint as to the complainant's credibility is also a direction of law - but I am also required to direct you that the law acknowledges that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about the type of conduct alleged here.
In this case, you have heard that whilst the complainant was living at home and the accused man was living there, you have heard the evidence of the domestic violence and the circumstances in which she was living. You have heard that evidence and as I have already pointed out to you, that evidence is not in issue in this case. It was that type of environment. So you might think that in those circumstances as the complainant has said to you herself, she was scared and there was good reason for her not to complain, that is entirely a matter for you as to whether or not you accept it, and in saying that, I am not assuming in any way the truthfulness of what she says. You will understand that the directions I am giving you are directed towards the question of delay in complaint.
You also have, of course, her tender years. At all relevant times, she was a very young girl, even after [FAD] left the family home, the complainant was still a very, very young girl, she was, what, ten or 11 years old at the time her parents split up. And then shortly after that, she then went to live with her grandmother, as you have heard, and it was not long after that that her life became a very troubled one.
You heard her mother say that she did not even complete Year 8 at school and was living on the street at the age of 14 or thereabouts, having left her grandmother, and as her mother said, she lost - I think her words were "daily contact" or regular contact with her daughter. So all of those circumstances need to be taken into account by you in assessing whether in this case the delay in complaint is inconsistent with the truthfulness of her evidence or not inconsistent with the truthfulness of her evidence but raises in your mind a question about the truthfulness of her evidence, so it can be used by you in relation to her credit and her credit is an assessment that you make as to her truthfulness. It can be used by you in that way, but as I have said to you, the law acknowledges that there may be good reasons, and in this case you may reach the conclusion that in fact there are good reasons, why a victim of a sexual assault, if you find that these offences occurred, may delay or hesitate in complaining about the type of conduct alleged in this instance.
There is no complaint made with respect to this direction which was, with respect, a very full and careful one.
The appellant places particular reliance upon the fact the complainant did not complain after she left her mother’s home and moved to live with her grandmother at the end of Grade 4 or start of Grade 5. It is submitted that, given the fact that the complainant finally felt free of the appellant and that he was not present to threaten her anymore and that she felt safe at her grandmother’s house and did not have to see him ever again, it is significant that the complainant did not make any complaint of abuse until years after the alleged events. It is submitted that these circumstances are inconsistent with the complainant’s evidence that she did not complain of the abuse because she was still scared that she or her mother might be assaulted and there was no point.
I am not persuaded there is any necessary contradiction in the complainant’s evidence. The matters raised were circumstances for the jury to consider in assessing her evidence. They did not compel its rejection. The judge drew them to the jury’s attention and there is no reason to believe they were not given due weight.
In addition to the evidence of lack of contemporaneous complaint, the complainant admitted that when asked directly as a child by doctors treating her in respect of thrush whether she had been the subject of sexual interference, she denied that she had.
It seems to me that this raises the same complex of considerations as the question of delay in complaint generally. The judge made it clear that the question of delay in complaint was a matter to which the jury could have regard in assessing the complainant’s credibility. He further made clear that that assessment was to be made in the context of the evidence as a whole as to the circumstances in which she did not complain.
It was open to the jury to accept that the complainant did not complain in the past because of the domestic situation in which she found herself. As the Crown submits, it was not contested that the complainant had suffered physical and emotional abuse at the hands of the appellant. The complainant’s mother confirmed the fact of violence and that she had falsely denied such violence when the complainant complained of it at school. The complainant described recurrent abuse by the appellant and said that she was always scared of him. She said she was afraid he would hurt her or her mother. She also said the appellant warned her not to tell anyone of what had occurred.
The complainant’s evidence that she did not complain of sexual assault because of this history and fear of the appellant was open to acceptance by the jury.
The evidence as to the complainant’s memory
The appellant submits that the complainant’s evidence as to her memory raises a significant issue as to her credit and reliability. The appellant relies on the following matters:
· The complainant’s statement, when asked whether she recalled specific incidents other than those she had described, was that she could not because she had blocked the matters out of her mind for over 10 years.
· The complainant’s assertion that her memory at the trial was superior to her memory at a previous trial because on the first occasion she had accidentally taken five sedatives because she was so nervous and this had an effect upon her capacity to give evidence.
· The complainant’s statement when asked in re-examination whether what she had described was imagined, that that was impossible because if those things were imagined she would not have had the injuries she had.
· The complainant’s admissions that she used drugs from a young age and that she had ‘ice psychosis’ at 15 or 16 years of age and associated paranoia and delusions. The complainant said the ice psychosis lasted perhaps six or 12 months. She further said she was no longer troubled by it after she was 16 or possibly 17 years of age.
Once again it seems to me that each of these matters raised issues properly for the jury’s consideration, but that none of them demonstrates the complainant’s evidence was necessarily unreliable.
Paradoxically, perhaps, each of the matters referred to is capable of being viewed as entirely consistent with the consequences of the trauma of childhood sexual abuse.
Deliberately obstructive answers in cross-examination
The appellant points to a passage of evidence involving questions relating to the evidence given by the complainant at a prior trial as demonstrating deliberate obstruction. Having read the transcript, I am not persuaded that the complainant’s answers were deliberately unresponsive. The complainant sought to go to the substance of the facts in issue before counsel had finished asking her whether she had given a series of answers to questions at the prior trial. Confusion about such matters is commonplace and hardly surprising.
Improbability that the offending occurred in the proximity of the complainant’s mother
It is submitted that the complainant agreed, in effect, that her mother could have entered the house at the time the alleged abuse was occurring during the day and that her mother was in a bedroom just across the hallway when abuse occurred at night. The jury were given a floor plan of the house. The complainant and her mother described the house in some detail.
Unfortunately, human experience of sexual behaviour does not support the conclusion that the factors asserted necessarily suggest the offending behaviour was improbable. The circumstances in issue were matters for the jury to weigh up as part of the evidence as a whole.
Alleged inconsistencies in the complainant’s evidence
The appellant submits that the complainant’s evidence was materially diminished in its credibility by inconsistencies:
· The appellant submits that the complainant was inconsistent as to whether she remembered clearly that charge 4 involved penetration of the anus. In particular, at a prior trial the complainant was uncertain as to this question whereas she professed certainty in the present trial. The complainant explained the inconsistency by the use of sedatives at the time of the previous trial.
· The appellant submits that the complainant was inconsistent as to the complainant’s bowel habits. In particular, the appellant submits that the complainant told police she only moved her bowels once every four to six weeks. Similarly, at the first trial, the complainant gave evidence she only went to the toilet once every four to six weeks. At this trial, she said she only went to the toilet every two to four weeks and said she must have been misheard at the first trial ‘because four weeks is the most’.
· The appellant submits that the complainant was inconsistent as to the connection between the complainant’s thrush infection and the alleged sexual abuse. It is submitted that the complainant gave varying answers as to when the thrush ceased.
Save for the first matter in respect of which the complainant gave a particular explanation, each of the above matters relate to collateral circumstances. The alleged inconsistencies were ones of degree only. They were matters for the jury to evaluate and did not compel the rejection of the complainant’s evidence as to the facts of the alleged offences. The complainant’s explanation for the first inconsistency, relating to her evidence concerning charge 4, was a matter for the jury to evaluate in the light of their assessment of her credit generally.
Improbability of the complainant’s evidence as to bowel movements
No expert evidence was led as to the physical feasibility of the complainant’s evidence that she suppressed her bowel movements for extended periods of time.
The complainant’s grandmother gave evidence directly corroborating a history of severe constipation.
The evidence as a whole fell to be evaluated in accordance with the jury’s joint experience of life. Even if it was regarded as involving some exaggeration, it might still be regarded as evidencing a significant contextual circumstance.
The complainant’s history of subsequent social interaction with the appellant
The complainant agreed that the appellant gave her a driving lesson, that they shopped together for groceries on one occasion, that she gave him some glass tumblers as a present at one point, and that she introduced the appellant to people at her 21st birthday party at a hotel and accepted and thanked him for a present. The complainant explained the social context in which she had contact with the appellant. It was for the jury to evaluate these collateral matters.
Corroborative or supportive evidence
As the trial judge directed the jury, the independent evidence of vaginal thrush did not establish that the complainant had suffered penile or digital penetration but it did corroborate a circumstantial element of her story. Likewise, the complainant’s grandmother’s evidence of the degree of the complainant’s
constipation did not confirm that she had suffered sexual assault but it could be accepted as confirming a circumstantial element of her story.
Ultimately, the prosecution case rested upon the complainant’s credibility. The defence case was that she was deliberately fabricating the allegations she made against the appellant. The complainant’s evidence was essentially coherent and relatively circumstantial. It was the evidence of an apparently intelligent and articulate 24 year old. It was for the jury to assess whether they accepted the complainant’s evidence in the face of the appellant’s denials as recorded in the record of interview and to assess the truth and reliability of the complainant’s evidence as to the sexual assaults in the light of the evidence as a whole.
Conclusion
Whether considered individually or in combination, I am not persuaded that the matters raised by the appellant demonstrate the jury’s verdict is unsafe and unsatisfactory. A consideration of the evidence as a whole leads to the conclusion that it was open to the jury to convict.
BUCHANAN JA:
I agree.
BONGIORNO JA:
I agree.
BUCHANAN JA:
The order of the Court is that the appeal is dismissed.
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