G J v The Queen
[2012] VSCA 275
•16 November 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0261
| G J | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE, REDLICH JJA and WILLIAMS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 1 November 2012 |
| DATE OF JUDGMENT | 16 November 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 275 |
| JUDGMENT APPEALED FROM | DPP v [GJ] (Unreported, County Court of Victoria, Judge Mullaly, 27 September 2011) (conviction) |
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CRIMINAL LAW − Appeal against conviction − Incest − Indecent act with person under the age of 16 − Offences committed against daughter of de facto partner − Whether verdict unsafe and unsatisfactory − Whether conviction on some charges logically inconsistent with acquittal on other charges − Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Mr G Thomas |
| For the Crown | Mr P B Kidd S.C. with Mr G Barr | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
The appellant, GJ, appeals (with leave) against his conviction in the County Court of one charge of incest (charge 2) and two charges of an indecent act with C, a child under 16 who was the daughter of his de facto partner (charges 1 and 3).
GJ was initially indicted on seven charges of sexual offences against C. Because C was uncertain about whether she was 15 or 16 when the alleged indecent acts covered by charges 6 and 7 occurred, the judge entered a verdict of acquittal on these charges, following a no-case submission. The jury acquitted the appellant of charges 4 and 5, which alleged that he had committed indecent acts against C, when she was approximately 13 years old.
On 4 April 2012, the appellant was granted leave to appeal against his convictions on the following ground:[1]
The verdict was unsafe and unsatisfactory.
Particulars:
(a)The verdicts on Counts 4 and 5 demonstrated that at least for those allegations the jury entertained a reasonable doubt about her credit and or her reliability.
(b)It is submitted that an analysis of her evidence ought to compel this Court to the view that it does not suffice to prove guilt on Counts 1-3.
(c)A reasonable doubt that is entertained by this Court is ordinarily a reasonable doubt that ought to have been entertained by the jury. M v The Queen.
(d)The best that can be said of the complainant’s evidence on Counts 1-3 is that it was prone to have resulted in a compromised verdict. In short it is submitted that the verdicts are unsafe and unsatisfactory and should be set aside.
[1]The appellant was refused leave to appeal against conviction on two other grounds and refused leave to appeal against sentence.
Circumstances of the offending
In 1997, the appellant met the complainant’s mother, who had four sons and one daughter (the complainant). He moved into their family home in 1999 when the complainant was around eight or nine years old.
The offences which are the subject of this appeal allegedly occurred on two separate occasions some time between June 2002 and 2003. At that time, the appellant was aged between 44 and 45 years, and the complainant was 11 years old.
The complainant’s evidence was that when charges 1 and 2 occurred, she was lying on a couch in the living room watching television. She recalled wearing a blue T‑shirt with Winnie the Pooh on it, but did not remember what she was wearing ‘on the bottom half’. The appellant lay down behind her and fondled her breasts (charge 1) and digitally penetrated her vagina (charge 2). This is described as ‘the couch incident’ below.
Several weeks later, the complainant was unwell and resting on her mother’s bed. The appellant entered the room and fondled the complainant’s breasts (charge 3) (‘the bedroom incident’).
Charges 4 and 5, of which the appellant was acquitted, were alleged to have occurred between 2004 and 2005, when C’s mother was overseas. The Crown case was that the complainant was asleep on the couch and the appellant lay down behind her. He touched C’s bottom underneath her underpants (charge 4), and also touched her breasts (charge 5). As I explain below, the complainant was uncertain whether her two younger brothers, who had fallen asleep on the couch with her, were present on the couch when these alleged offences occurred.
The Crown was given leave to admit evidence of uncharged sexual acts committed against the complainant, including two or three instances of digital penetration, in order to place the charged acts in context. The trial judge also allowed evidence of comments about sexual matters made by the appellant to the complainant to be admitted as tendency evidence, showing that the appellant had a sexual interest in the complainant. Warnings were given to the jury about the use of this evidence.
The Crown alleged that the appellant admitted wrongdoing when he was confronted by the complainant in August 2009. The complainant gave evidence that she had been in hospital. The day after she was discharged, she went to the appellant’s house and:
I was hysterical and I asked him why did he do this to me and why did he do this to my family and that he has ruined my life. And then he got on his knees and he started crying and he just said if I could forgive him and he didn’t – he wasn’t asking for permission, he just said, ‘Forgive me, just forgive me.’
The appellant gave evidence at trial denying the allegations of sexual misconduct. He said that, in a confrontation during August 2009, the complainant had accused him of taking her mother away from her, and he had responded ‘I’m sorry that’s what you think but I love your mother and I love you all’. He denied that he had fallen to his knees or asked for forgiveness as the complainant alleged.
The appellant was refused leave to appeal against the admission of this evidence and the directions which the judge gave the jury about its proper use.
Appellant’s submissions
The appellant’s written submissions argued that the verdicts on charges 1, 2 and 3 are unsafe, having regard to his failure to admit the offences, the lack of medical evidence or corroboration of the complainant’s evidence, and her delay in complaining. C’s evidence was said to be ‘vague and imprecise’, and it was argued that she had lapses in memory about the details surrounding all of the alleged offences, which cast doubt on the reliability of her memory.
At the oral hearing, the appellant relied primarily on the argument that the jury verdicts of guilty on charges 1, 2 and 3 were logically inconsistent with the verdicts of not guilty on charges 4 and 5. The appellant contended that the jury could not logically have found the complainant’s evidence unreliable with respect to charges 4 and 5, whilst at the same time accepting her evidence on charges 1, 2 and 3, in circumstances where there was no significant difference between the quality of the complainant’s evidence on any of the charges. It followed that the appellant’s conviction on the first three charges was at best a ‘compromised verdict’.
The appellant also relied on changes between the complainant’s evidence at the preliminary hearing and at trial, and between her evidence in chief and cross‑examination, which were said to cast doubt on her memory of the alleged offences and to have necessarily raised a reasonable doubt as to the appellant’s guilt of charges 1, 2 and 3. The appellant argued the complainant could not recall and/or changed her evidence about:
·the day of the week and time of day when the couch incident occurred;
·whether all or only some of her brothers were present in the house at the time of the couch incident;
·how the appellant came to be behind her on the couch;
·whether the appellant touched her breast and vagina with one hand or two during the couch incident;
·the duration of the couch incident; and
·what she was wearing during the bedroom incident.
I discuss the evidence on these matters in more detail below.
In response to the appellant’s written submission, the Crown contended that the general matters relied on by the appellant, such as the absence of medical evidence and C’s delay in complaining, are commonplace features of sexual offence trials and were simply matters which the jury could take into account in reaching its verdict on the charges.
It was submitted that the judge had directed the jury that they must consider each of the charges separately and that there was no logical inconsistency between the jury verdict of not guilty on charges 4 and 5 and the appellant’s conviction on charges 1, 2 and 3. The jury might well have considered that the first three charges were made out and that the offences covered by charges 4 and 5 had probably occurred, but not been satisfied beyond reasonable doubt that this was the case. There were at least two logical bases on which the jury might have experienced a reasonable doubt about charges 4 and 5, whilst at the same time being satisfied that the appellant was guilty of charges 1, 2 and 3. The complainant was uncertain about whether her two younger brothers were present at the time when the offences covered by charges 4 and 5 allegedly occurred, and the jury might have had a reasonable doubt about whether this incident could have occurred when the other children were lying on the couch along with the complainant.
In addition, the complainant had originally referred in her evidence in chief to the appellant touching her buttocks (charge 4) and only later described him touching her breasts. After the charge, the jury asked the following question ‘What are the details of charges for offences 4 and 5? What behaviour is Charge 4 and what behaviour is for Charge 5’. Arguably, this indicated that the jury had difficulty in understanding why the complainant had not initially mentioned the appellant touching her breasts.
Counsel for the Crown submitted that the jury had had the advantage of seeing the complainant give her evidence. The complainant had given evidence in significant detail about the couch incident and the bedroom incident, and the changes in the evidence relied upon by the appellant were not such as to require a reasonable doubt to arise in the mind of the jury. In addition, the jury were entitled to give significant weight to the evidence of the complainant’s ex-boyfriend, Jai Holt, which supported the complainant’s account that the appellant had made admissions when she confronted him in 2009.
Conclusion
In Libke v The Queen,[2] Hayne J,[3] with whom Gleeson CJ and Heydon J agreed, said that, in deciding whether a jury verdict was unsafe and unsatisfactory:
the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[4]
[2](2007) 230 CLR 559 (‘Libke’).
[3]Gleeson CJ and Heydon J agreeing on this issue, Kirby and Callinan JJ dissenting, but not specifically on this point.
[4](2007) 230 CLR 559, 596−7 [113], see also M v The Queen (1994) 181 CLR 487; Knight v The Queen (1992) 175 CLR 495.
Counsel for the appellant argued that this proposition had to be read in the context of the issue which arose in Libke, which was whether an intellectually disabled girl had consented to sexual acts and if so, whether she had been capable of doing so. By contrast, in this case, the jury must have had doubts about the reliability or credibility of the complainant in relation to charges 4 and 5. They were therefore bound to experience similar doubt about the complainant’s evidence of charges 1, 2 and 3.
I would reject the argument that the approach taken in Libke is inapplicable in the circumstances of this case. The test which must be applied is not whether the jury could have acquitted the appellant of charges 1 to 3, but whether it was required to do so. In reaching a conclusion on that issue, this Court must make ‘an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported’.[5]
[5]SKA v The Queen (2011) 243 CLR 400, 409 [22]−[23] (French CJ, Gummow and Keifel JJ).
I would accept the Crown’s submission that the general matters relied upon by the appellant were insufficient to preclude satisfaction of guilt beyond reasonable doubt. The judge gave the jury the required directions about the relevance of delay in complaint, including a direction under s 61(1)(b) of the Crimes Act 1958 that there may be good reasons for a victim to delay in complaining that they have been sexually assaulted. Such delays commonly occur when a child is abused by a family member. Even where a victim of sexual offences complains immediately, medical evidence of the offence may be equivocal. Where there has been a delay in complaining, it is unlikely to assist the jury at all. Many, if not most, sexual offences occur in private, and it is not uncommon for a complainant’s evidence of a sexual assault to be uncorroborated.
I now turn to the specific complaints of the appellant. The first related to the lack of specificity in the complainant’s evidence as to the time and date of the couch incident. In the complainant’s evidence in chief, she said she did not recall the day this had occurred. She expressed some uncertainty about the time of the offence, but was ‘pretty sure’ it was a weekday and said ‘I think it was early in the morning or around lunchtime.’ Under cross-examination, she later said that it was ‘early in the afternoon’, and she thought it was ‘before lunch’. She remembered that she was lying on the couch watching television and that she was wearing a dark blue T-shirt with frills on the sleeves and she thought it had Winnie the Pooh in the middle of it. She said that she ‘thought’ that her two little brothers were in the house.
I do not consider that these gaps in the complainant’s memory of the couch incident cast any doubt on her reliability. The complainant gave unequivocal evidence that she was 11 years old when this offence occurred. In my opinion, the inability of a child of 11 to recall the precise date and time when she was first sexually assaulted by her stepfather is of little significance.
The appellant also relied on changes in the complainant’s evidence about whether the appellant had put both hands down her pants or touched her vagina with only one hand, and changes in the complainant’s estimate about the duration of this incident.
In her evidence in chief, the complainant said that the appellant was lying on the couch behind her. She said that at first ‘I think he was just hugging me with one hand’. He had then wrapped his arms around her, put both hands up her shirt and had rubbed her breasts. He had then put his hands ‘down there’ (she clarified that this was on her vagina) and inserted a couple of fingers. She said that this ‘felt weird’ and she was ‘scared’. He then touched her breasts again and kept talking to her and asked her if she was scared. When asked how long the breast rubbing lasted, C said ‘I can’t really remember, maybe half an hour’. She was asked again by counsel for the Crown how long the whole incident lasted and she said ‘I don’t know exactly how long, but it just seemed like a long time’. When asked to give an estimate, she said ’maybe an hour’.
In cross-examination, the complainant was asked whether the appellant had said anything when he put his hands under her shirt. She said he had commented that her ‘boobs were growing so we should think about buying you bras’. She was cross‑examined about her evidence in chief that the appellant ‘put his hands’ on her vagina during the couch incident as follows:
Was he using both hands? No.
Which hand? His left hand.
His left hand. Where was his right hand? I don’t remember.
Well, you told the jury that he was using both hands to touch your vagina, is that not right? No, I don’t think so, I think I said it was one hand.
Right. ‘He put his hands down there on my vagina for a few minutes and was rubbing,’ is that right? Yes.
With both hands? With one hand.
Later in cross-examination, defence counsel again asked C if the appellant had put ‘both hands’ onto her vagina and she again said ‘one hand’. When asked about her earlier evidence that ‘he put his hands down there on my vagina’, the complainant said ‘to correct that, it was one hand’.
The complainant was then cross-examined as follows:
And when the left hand, you think, was in the area of your vagina what was the right hand doing? I don’t remember.
Did you not say at the preliminary hearing that your chest area was being touched and your vaginal area touched at the same time? I guess I did say that.
But you can’t remember whether that happened now or not? No, it’s not that I can’t remember, I guess I did say that but, um, yeah, I don’t know.
At the preliminary hearing, the complainant was asked how long the appellant had hugged her for, to which she responded ‘Oh, well, I was there for about two hours so probably an hour’. During cross-examination, she was asked how long she had been on the couch with the appellant and she said ‘about an hour’. When defence counsel asked her this question again, she responded ‘I can’t tell you approximately how long but it felt like a long time’.
It was put to C that on a previous occasion, she had said that this incident started around lunchtime and went on for about two hours, and she said ‘I said about an hour’. She was asked again whether she had said in the past that it had gone on for two hours and she said she was ‘not sure’, and then said she did not know.
The complainant was also cross-examined about her evidence in chief that the offences covered by charges 1 and 2, and charges 4 and 5 occurred on a couch in the lounge room, although she said it was not the same couch. She was shown a photograph of three couches and she said that the house in which the couches were shown was not the house in which the offences occurred. She maintained that the couch on which the offences covered by charges 4 and 5 occurred was one with a sofa bed. This issue went no further.
In my view, the answers given by the complainant in response to questions about whether GJ used one or two hands when he touched her breasts and digitally penetrated her vagina (charges 1 and 2) did not raise a reasonable doubt about whether these offences had occurred. When re-examined as to whether or not her chest and vagina were touched at the same time, the complainant said ‘I don’t remember. I just remember it was the first time he had ever touched me down there, so it was just ― I just remember really being distracted by that.’
Jury members are entitled to call on their own experience in assessing such evidence. Most adults would have difficulty in precisely describing the sequence and physical actions involved in a sexual act. The complainant was an 11 year old child when her stepfather allegedly abused her. But she was firm in her evidence that she was digitally penetrated and touched on her breasts on the occasion covered by charges 1 and 2. The jury might well have taken a sceptical view of an attack on the complainant’s credit based mainly on inconsistencies about the precise sequence of events and on whether the appellant touched her breast first and then her vagina, or touched both her vagina and her breasts with different hands at the same time.
Nor do I consider that inconsistencies about the duration of these events gave rise to any reasonable doubt about the complainant’s evidence of the couch incident. The trial judge expressed some scepticism about the usefulness of questions about the precise duration of sexual incidents which occurred when a witness is or was a child in ascertaining the witness’s credibility, and I take a similar view. Be that as it may, at no stage in her evidence did the complainant say that the appellant had touched her fleetingly. Throughout her evidence, she maintained her position that the offences occurred over a significant period of time. She also described matters likely to be recalled by an 11 year old child, such as the fact that she was wearing a T-shirt with Winnie the Pooh on it.
The complainant herself said more than once that she was uncertain about this matter, but that it ‘seemed like’ a long time. It was well open to the jury to reject the complainant’s perceptions of the time period over which the events occurred, but accept her evidence that the appellant had touched her breasts and digitally penetrated her. The jury might well have considered that the complainant’s evidence that it ‘felt weird’ and that she was scared when the appellant digitally penetrated her was compelling, that children’s perceptions of time are not necessarily accurate and/or that such perceptions of time may vary according to whether the particular experience is enjoyable or frightening.[6]
[6]Unlike SKA v The Queen (2011) 243 CLR 400, the complainant’s uncertainty was not relevant to an alibi relied upon by the appellant.
As to charge 3, the appellant also relied upon the difference between the complainant’s evidence at the preliminary hearing that she had no recollection of what she or the appellant were wearing when the bedroom incident occurred, and her evidence at the trial that she was wearing jeans and the appellant was wearing shorts.
In her evidence in chief, the complainant said that she was lying on her mother’s bed when the appellant came into the room, closed the door, lay beside her and ‘he had his hand up my top again’. She said he was kissing her mouth and ‘trying to stick his tongue in my mouth.’ When asked what she was wearing at the time, she responded ‘I think I was wearing jeans. I can’t remember’.
In cross-examination, the complainant said that the appellant was wearing boxer shorts at the time, and confirmed that she was wearing jeans. When it was put to her that she had previously had no recollection of what she had been wearing, she said that counsel was asking her to ‘really think about it right now’. She said that she now recalled what she and the appellant had been wearing. She agreed that at the committal hearing, she was not able to remember these details.
Again I do not consider that the jury was bound to experience a reasonable doubt because of the change in the complainant’s evidence. As has frequently been observed, credit is not an indivisible whole.[7] The judge instructed the jury that they could accept the complainant’s evidence in part. Even if the jury did not accept C’s evidence that she had remembered further details of what she and the appellant were wearing by the time she gave her evidence at the trial, it was open to the jury to consider that the complainant was mistaken on this matter, but to be satisfied beyond reasonable doubt that the indecent act in the bedroom had nevertheless occurred.
[7]R v Ware [1997] 1 VR 647.
Finally, I turn to the argument that the jury verdicts on charges 1, 2 and 3 were unsafe, because the verdicts on these charges were inconsistent with the not guilty verdicts on charges 4 and 5. In recent times, the Court has frequently been asked to find that a jury verdict of guilty on one or more charges of sexual offences is inconsistent with a verdict of not guilty on other charges. But such an argument can only succeed where the explanation for the acquittal on some charges casts very powerful doubts on the complainant’s general credibility.
In MFA v The Queen,[8] the High Court dismissed MFA’s appeal against his conviction on two counts of sexual offences, on the ground that the verdict was unsafe because the jury had acquitted him of seven other counts. In their joint judgment, Gleeson CJ, Hayne and Callinan JJ emphasised that the significance of verdicts of not guilty on some counts and guilty on others will depend on the circumstances of the particular case and the context in which juries operate:
A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman,[9] and referred to in later cases:[10] it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only.[11]
[8](2002) 213 CLR 606.
[9](1987) 44 SASR 591, 593.
[10]See, eg, MacKenzie v The Queen (1996) 190 CLR 348, 367−8.
[11](2002) 213 CLR 606, 617 [34].
The complainant’s evidence in chief as to the incident covered by charges 4 and 5 was that on the evening before the offences occurred, she had had a tantrum because the appellant would not let her go out with her friends on the following day. At the time, her mother was overseas. She had fallen asleep on one of the couches and when she woke up the next morning, the appellant was lying beside her. She thought her brothers were lying there too. The complainant said that the appellant ‘put his hand down my pants and he was just touching and groping my bum’. When asked if anything else happened she said that ‘I think he would have tried to kiss me’. She was then asked what else she could actually remember and she said that ‘I don’t remember any more’, and that she could not remember what the appellant’s other hand was doing as he was touching her bottom. Later in her evidence in chief, she was asked whether GJ had done anything else on the same occasion and she said that he had also touched her breasts.
In cross-examination, C again said that she fell asleep on the sofa bed, and woke with her two brothers sleeping beside her. She then gave evidence as follows:
You say [GJ] is lying behind you? Yes, but at this point, I don’t know if my brothers were there any more.
At this point, you don’t know whether your brothers were there? Yes.
But you have sworn time and time again in the past that your brothers were there on the couch with you and [GJ]. That’s what you have said in the past, haven’t you? No.
…
You know physically what you describe, what you have described in the past, about [GJ] lying behind you on the couch, with your two brothers in front of you on the couch, just couldn’t physically happen? Um, to correct it, like I said, I don’t know at this point if my brothers were still there and when
Why would ? And – and also, um, if I could recall, there were a lot of occasions where me and my brothers were laying in the same bed and Joseph would be there as well, because we were little, we all being little and we all being pretty small.
Why would you say in the past that your brothers were there with you and [GJ] unless you had a memory of that? Because I do have a memory of that.
You did have a memory of that? Yes.
But you don’t have a memory of that now? I just remember him being beside me and I – I know that my brothers fell asleep on that sofa bed with me and when I woke up, it wasn’t my brothers beside me any more, it was Joseph behind me.
You see, you told the court at the preliminary hearing that when you wake up in the morning, the first thing you know is there’s a fourth person lying on the couch. That’s what you told the preliminary hearing, isn’t it? I don’t remember.
This is p.17. Question, line 14: ‘The first thing you know is there is a fourth person lying on that couch?’ Answer: ‘Yes’? Yes.
You don’t recall saying that at the preliminary hearing? Um, I – I guess I did.
C later conceded that she had initially said that her brothers were on the couch at the same time as the indecent act occurred, but that she could not now recollect whether this was the case. Then in re-examination, she said that she was sure that her brothers were there.
The complainant was very distressed when she gave her evidence. She made it clear that she could not recall all of the surrounding circumstances of charges 1, 2 and 3, but was not shaken in her evidence that she had been sexually abused by the appellant on the two relevant occasions. The jury had the opportunity to observe both her and the appellant when they gave their evidence. The jury may well have found the appellant not guilty on charges 4 and 5 because of the complainant’s uncertainty about whether her younger brothers were present when the offences had occurred. They may have considered that she was honestly mistaken in describing the events on that occasion, because she had conflated other uncharged acts with the charged acts, or because she often slept with her brothers on the couch.
The appellant’s acquittal on charges 4 and 5 did not require the jury to experience a reasonable doubt about charges 1, 2 and 3. The trial judge gave the jury the usual direction that they could accept part of the complainant’s evidence and reject other parts of it, and that they must consider each charge separately. A verdict of not guilty on some sexual offence counts:
does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.[12]
[12]MFA v The Queen (2002) 213 CLR 606, 617 [34]; see also Pollard v The Queen (2011) 31 VR 416 436−7 [93]; GAP v The Queen [2011] VSCA 173 [39].
Although the jury was required to be satisfied beyond reasonable doubt that the appellant committed the offences covered by charges 1, 2 and 3, they may well have been reinforced in their view that the complainant was a reliable witness by the evidence given her ex-boyfriend, Jai Holt. The complainant said that when she confronted the appellant in 2009, he had dropped to his knees, cried and begged her forgiveness, and her mother had told her she should forgive him. She had then told the appellant that he was splitting her from her mother.
In his evidence, Jai Holt said that he was about 10 metres away when the complainant screamed ‘how could you do this to me’ and ‘how could you do this to us’ at the appellant. He said that the appellant was ‘on the ground, just on his knees, saying “sorry”’ and was crying. The appellant denied that Jai was present during the confrontation, and said that the alleged incident of falling on this knees ‘never happened’. He said that the complainant had simply accused him of taking her mother away from her and he had responded by saying ‘I’m sorry that’s what you think but I love your mother and I love you all’.
In my opinion, it is unlikely that the appellant would have behaved in the way described by Holt simply in response to an accusation that he had come between the complainant and her mother.[13] Having regard to all of the evidence described above, the jury was not required to have a reasonable doubt about the appellant’s guilt of charges 1, 2 and 3.
[13]The directions which the judge gave as to the use of the alleged admission were not challenged on appeal.
For these reasons, I would dismiss the appeal against conviction.
REDLICH JA:
I agree with Neave JA.
WILLIAMS AJA:
I agree with Neave JA that the appeal should be dismissed for the reasons her Honour gives.
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