Harmer (a pseudonym) v The Queen
[2020] VSCA 310
•3 December 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0158
| DEAN HARMER (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.
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| JUDGES: | MAXWELL P, PRIEST and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 October 2020 |
| DATE OF JUDGMENT: | 3 December 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 310 |
| JUDGMENT APPEALED FROM: | DPP v [Harmer] (Unreported, County Court of Victoria, Judge Murphy, 4 March 2019) (Conviction) |
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CRIMINAL LAW — Appeal — Conviction — Incest — Indecent act with a child under 16 — Whether verdicts unreasonable or unable to be supported having regard to evidence — Inconsistent verdicts — Whether acquittal on one charge inconsistent with guilty verdicts on remaining charges — Whether majority verdicts inconsistent with unanimous verdicts — Verdicts not inconsistent — Verdicts not unreasonable — Leave to appeal granted — Appeal dismissed — Pell v The Queen (2020) 376 ALR 478; MacKenzie v The Queen (1996) 190 CLR 348; Anderson v The Queen [2010] VSCA 108 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Boston and Ms F Fox | Furstenberg Law |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the considerable advantage of reading in draft the reasons for judgment of Priest JA. I agree with his Honour, for the reasons he gives, that both grounds of appeal as originally formulated — unreasonableness and inconsistent verdicts — must be rejected.
Unlike his Honour, however, I would also reject the specific challenge to the conviction on charge 2. I agree with Niall JA, for the reasons he gives, that the guilty verdict on that charge was reasonably open on the complainant’s evidence.
PRIEST JA:
Introduction
Following a trial in the County Court, on 5 March 2019 the jury found the applicant guilty of 12 charges: seven charges of incest[2] (charges 2, 3, 7, 8, 9, 11 and 13) and five charges of committing an indecent act with a child under 16[3] (charges 1, 4, 5, 6 and 12). Six of those guilty verdicts were unanimous (charges 2, 4, 5, 6, 10 and 13), and six were by a majority (charges 1, 3, 7, 8, 9 and 11). By unanimous verdict, the jury also found the applicant not guilty of one charge of incest (charge 12).[4]
[2]Crimes Act 1958, s 44(1).
[3]Crimes Act 1958, s 47(1).
[4]A jury had been unable to reach verdicts in a previous trial in February 2019.
On 9 May 2019, the trial judge sentenced the applicant to a total effective sentence of 12 years and 10 months’ imprisonment, with a non-parole period of eight years and six months.
The applicant now seeks leave to appeal against his conviction on two grounds, formulated as follows:
1. The verdicts are unreasonable or unable to be supported having regard to the evidence.
2. The verdicts are unreasonable, in that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion they did. In particular:
(a)the not guilty verdict on Charge 12 is inconsistent with the guilty verdicts on the remaining charges;
(b)the majority verdict of guilty on Charge 3 is inconsistent with the unanimous verdicts of guilty on Charges 2 and 4; and/or
(c)the majority verdict of guilty on Charge 11 is inconsistent with the unanimous verdict of guilty on Charge 10.
As will become clear, I am of the view that the conviction on charge 2 — which alleged incest by way of digital penetration of the vagina — cannot be supported by the evidence. I would therefore grant leave to appeal against conviction; allow the appeal (limited to the conviction on charge 2); set aside the conviction on that charge; and, pursuant to s 277(1)(c) of the Criminal Procedure Act 2009, substitute a verdict of committing an indecent act with a child under 16.[5] The appeal should otherwise be dismissed. My reasons for these conclusions follow.
[5]It will also be necessary to resentence the applicant.
The evidence at trial
So as to understand the issues raised by this application, it is necessary to say something of the evidence led at trial in support of the charges.
The applicant is the paternal grandfather of the complainant, ‘RS’, who was aged between nine and 12 years at the time of the alleged offending. RS was aged 13 when, on 26 February 2017, she took part in a VARE[6] with police. The VARE in effect constituted her evidence-in-chief at trial.
[6]Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367; and Criminal Procedure Regulations 2009, Part 2.
There were said to be eight separate ‘incidents’ of offending.
The first incident: Charge 1 – Indecent act (Majority verdict)
RS said that she and her brother had been riding on a lawnmower. She was aged nine years. The applicant said to her, ‘I wanna [sic] touch your private parts’. The next day, the applicant and RS were on the couch watching football when the applicant exposed his penis and asked RS to grab it. She did so.
In the VARE, RS, described the alleged offending as follows:
Q O.K. And so just take me through step by step. You said you were on the couch watching footy.
A Yeah.
...
Q And you were lying on each other.
A Yeah. I was lying on him.
Q O.K. So what part of you was lying on him?
A My legs.
Q O.K. Where did the blanket come from?
A He already had it on the couch.
Q Yep. And you said that he said, ‘Come and hold this, do you wanna hold this?’
A Yeah.
Q And that he took your hand?
A Yeah.
Q So tell me what he did with your hand.
A He just placed it there and I was trying to, like, let go and he wouldn’t let me.
Q O.K. So you say he placed it there. Tell me about where his penis was.
A It was out of his pants. It was, like, I can’t really remember. It was just there.
Q O.K. So it was out of his pants and you said he grabbed your hand and placed it there.
A Yeah.
Q So how did he … do that?
A He said like, ‘Oh, come over here,’ like, ‘Come closer,’ and I did and then he, like, grabbed my hand. He’s like, ‘Come hold this,’ and I didn’t want to. I was trying to, like, pull away but then – yeah.
Q And why couldn’t you pull your hand away?
A Because he’s a grown man and has a lot more strength than I do.
Q Yeah. And so – so you say, ‘He was a grown man and he has more strength than I do.’ So was he holding your – like, what part of your body was he holding?
A Just my arm.
Q O.K. And so by him holding your arm, did that mean that you couldn’t pull your hand away?
A Yeah.
Q O.K. And you say that that happened the next day after he first tried to put his hands down your pants.
A Yeah.
Q Yeah. So that day that you were sitting on the front lawn watching your brothers on the lawnmower, that next day this happened.
A Yeah.
The second incident: Charge 2 – Incest (Unanimous verdict); Charge 3 – Incest (Majority verdict); and Charge 4 – Indecent act (Unanimous verdict)
The second incident involved allegations that RS was having a bath when the applicant walked into the bathroom; lifted her out of the bath; sat her on a bench; spread her legs and used his fingers to rub around her vagina (charge 2 – incest), before bending down and licking ‘all around’ her vagina (charge 3 – incest) whilst masturbating (charge 4).
RS described the incident in the VARE as follows:[7]
[7]Emphasis added to this and following passages.
Q O.K. Is there anything else you can tell me about [the applicant]?
A Yeah. I remember when I was nine I was in the bath and he came in. He was in his gown, like his robe and he was, like, naked underneath and he took it off and then he sat me on the bathroom bench where the sink is and then he, like – since I was already undressed, he started, like, playing with my vagina and then, like, licking it and stuff.
Q Yeah. And then what happened?
A That’s all it really was and then I needed a towel so I yelled out to his wife, saying I needed a towel so that he would leave.
Q So I’m gunna take you back to the start of that. You said you were in the bath.
A Yeah.
Q And whose house were you at?
A [The applicant’s] house.
...
Q O.K. You said you were nine years old?
A Yeah.
Q And that Matt came in and he had a robe on?
A Yeah.
Q How did you get from the bath to the sink?
A He took me out, like, he lifted me out.
Q O.K. And can you remember how he lifted you up?
A With my, like, armpits.
Q Yeah. And then what happened?
A He just took me to the bench. There was, like, the bath and then the bench so – yeah.
...
Q And on the bench bit, when you were sitting there, can you describe to me what position your legs were in?
A I was just – my legs were dangling over the side and I was, like, sitting up straight.
Q Yeah.
A And then he forced my legs open so he could play with it.
Q O.K. So how did he force your legs open?
A He, like, spread them apart and, like, since he was a grown man, like, I obviously couldn’t, like, put them back together.
Q Sure. And you said – well, you did this action, he spread them apart - - -
A Yeah.
Q - - - do you mean with his hands or - - -
A Yeah.
Q - - - with another part of his body?
A Yeah. His hands.
Q O.K. And then you said that he played with your vagina with his fingers?
A Yeah.
Q So tell me how he did that.
A He just, like, rubbed his fingers, like, all around, I guess.
Q Yeah. And then you said that he licked your vagina.
A Yeah.
Q Yeah. So tell me how he did that.
A He, like – he bent over a bit and then he just, like, his - it’s hard to explain - - -
Q It’s all right. Just take your time.
A He sort of also, like, just licked everywhere, yeah.
...
Q Yeah. And when you say, ‘He licked everywhere,’ everywhere of what?
A Everywhere of, like, just around my vagina.
Q Yeah, O.K. Are you aware of the different parts of your vagina?
A Not really.
Q O.K. It’s all right. Would you agree that there’s an area – the opening of your vagina, there’s another area where urine comes out?
A Yeah.
Q So when you say, ‘He licked everywhere,’ can you be more specific to where his tongue actually went?
A It just went near – well, it went, like, over one of the holes. I don’t really know what it’s called but it’s like the middle one. So not the pee hole.
...
Q O.K. So not where your urine comes out?
A No.
Q The other hole. Which so we’ll call the vagina hole.
A Yeah.
Q Yep. So tell me what his tongue – just explain to me again, sorry, what happened in relation to that hole.
A His tongue was, like, going up and down against the hole.
Q Yeah, O.K. Would you say that his tongue went inside that hole?
A No.
Q But it went up and down - - -
A Yeah.
Q - - - on the outside of that hole?
A Yeah.
…
Q Was he doing anything else while he was doing – while he was licking your vagina?
A Yeah. He was, like, masturbating.
Q O.K. And when you say ‘masturbating’ what do you mean?
A His, like, hand was on his dick and he was, like, just going up and down with it.
Q O.K., yeah. How did that incident end?
A ‘Cause I yelled out to his wife asking for a towel.
The third incident: Charge 5 – Indecent act (Unanimous verdict) and Charge 6 – Indecent act (Unanimous verdict)
The third incident involved an allegation that the applicant asked RS to help him make his bed; closed the bedroom door; pushed her onto the bed; and masturbated in front of her (charge 5 – indecent act), before ejaculating on her stomach (charge 6 – indecent act). RS was aged nine or 10 at the time. On this occasion, the applicant allegedly also asked the complainant to put on a G-string, and asked her to touch herself while he took photos of her.
In the VARE, RS described the activities making up the third incident as follows:
Q O.K. I’m just gunna take you back to the start of that. You said there was a time where he asked you to help him make his bed.
A Yeah.
Q Can you remember when that happened? How old were you?
A Nine or 10.
...
Q O.K. And you said that he asked you to come and help make the bed and you went in there and he closed the door.
A Yeah.
Q Yep. And so tell me step-by-step – after he closed the door, tell me what happened, step-by-step?
A He told me to sit down and then he, like, he took his pants off and stuff and then he took my top off and then he just started, like, wanking, I guess. And then he started coming all over my stomach.
Q O.K. So when you say ‘coming over my stomach’ what do you mean, what happened?
A Like, I don’t remember it was just so quick to happen. It was, like - I dunno, it just sorta like came out of his dick.
Q So do you know what came out of his dick? Can you describe it?
A Sperm.
Q And can you describe what that looked like?
A It was, like, white and sticky.
Q O.K. And how do you know it was sticky?
A Because he made me touch it.
...
Q Yeah. So when you say, ‘He started wanking,’ what do you mean by that? What was he doing?
A He had his hand in – like, on his dick and it was, like, it was going up and down.
Q O.K. And was his dick - which way was his dick pointing?
A At me.
Q So it was erect would you - - -
A Yep.
...
Q Yeah. You say that he started coming over your stomach. So you say you were sitting on the bed?
A Yeah.
Q And where is he in relation to you?
A He was – at first he was, like, just kneeling on the ground but then he made me lie down and then he got on the bed and was kneeling on the bed and doing it.
…
Q O.K. So tell me about that.
A He said, ‘Oh, just feel this.’ And I told him it felt really warm.
Q So when you touched it, whose body were you touching?
A My own, ‘cause it was on my stomach.
Q O.K. So tell me about when he made you touch it. What did he say?
A He just said, ‘Oh, it’s feels cool, doesn’t it?’ so – yeah.
...
Q Yeah. What happened after he made you touch it?
A I said, it was, like, sticky and gross and then he wiped it off with a tissue.
Q Yeah.
A And then he put a G-string on me and then started taking photos of me.
Q O.K. So after he’s wiped it off with a tissue, tell me about how he puts a G-string on you.
A He told me to take my pants off and try these on. And then I tried them on and I didn’t know what they were. I thought they were just undies, so I was, ‘O.K.’ And then I started putting my pants back on and he was telling me, ‘No, don’t do that. Just leave them off.’ So I was telling him, ‘No. What are you doing?’ And then he told me to lie down again and then, like, he made me put my hands in, like, weird places on my body and then started taking photos of me.
Q O.K. So tell me about your hands in weird places on your body.
A Like, he told me to place them on my vagina or on my boobs and stuff.
Q And did you do that?
A I had to.
Q Yep. And you said he was taking photos of you.
A Yeah.
Q So what was he using to take photos of you?
A His iPhone.
...
Q And you said, like, he made you put on a pair of G-strings. Describe them for me.
A They were black and lacy.
Q Yeah. And where did he get them from?
A The top drawer, next to his bed.
Q And whose drawer would that be?
A They would have been the wife at the time.
Q How many - how long did that last for, the whole G-string taking photos thing?
A Probably half an hour.
Q And how did that end?
A ‘Cause my brothers came back inside and then [the applicant] could hear them and then so he, like, quickly told me to get my stuff back on and then take the G-string off and then – and then he told me, ‘I’m gunna delete the photos just in sec. Let me look at them first and then I’ll delete them straightaway.’ And I believed him and then he started putting all his clothes back on and he didn’t even bother to look at the photos. He just turned it off and then went out of his room.
Q So where do you think those photos are now?
A Either deleted or still on his phone.
The fourth incident: Charge 7 – Incest (Majority verdict) and Charge 8 – (Majority verdict)
The fourth incident allegedly occurred when the complainant was reading a book in the guest room. RS alleged that the applicant shut the door; threw the book away; pushed her onto the bed; pulled down her pyjamas; and knelt beside her. He then digitally touched and penetrated her vagina (charge 7 – incest), and also licked the complainant’s vagina (charge 8 – incest).
In the VARE, RS described the incident as follows:
Q O.K. Did – were there any occasions when he would lick your vagina on the guest – in the guest bedroom where any other person would be aware of that?
A No, but there was one time that [BS] knocked on the door and asked if we were having sex.
Q O.K. So tell me about that time. I want you to start at the very start. Tell me everything that you remember and then how it ended.
A All right. So I was – I was reading all the books that he gave me and then he just shut the door and said, ‘What book are you reading?’ and then I told him and then I started reading it to him and then he grabbed the book out of my hand and then threw it across the room. And then he, like, forcefully pushed me onto the bed and then – and that was happening for about 10 minutes, like, ‘cause he was licking my vagina and, like, touching it and stuff. And then 10 minutes later my – like, [BS] knocked on the door and said, ‘Are you guys having sex?’ So my dad - like, my grandad said - he walked out ‘cause he still had his clothes on. He said, ‘No, we were just having tickle time.’ And then he just walked out and didn’t come back.
…
Q Do you remember how old you were when these things were happening?
A About nine to 10, even when I was, like, 11 so - - -
Q So you’ve said you were between nine and 10 and you believe it was – also happened when you were 11.
A Yeah.
Q Yeah, O.K. Just going back to that second one, the one where [BS] knocked on the door, so you said that you were in the room reading a book and that [the applicant] came in, that he threw the book across the room and he started licking your vagina.
...
Q O.K. So you said you were wearing your pyjamas. How did the licking of the vagina occur?
A I don’t know. He just pulled my pants down and it happened.
...
Q O.K. So not only does he pull your pants down, the takes them off.
A Yeah.
Q Yeah, O.K. What position were you? My legs were dangling on the side of the bed.
Q And what part of your body were you lying on?
A My back.
Q And explain to me what position [the applicant] was in.
A He was kneeling on the floor again.
Q And you said that he was licking your vagina. And what was he using to lick your vagina?
A His tongue.
Q Yeah. And what part of your vagina was he licking?
A My vaginal hole.
Q And you also said to me earlier that, ‘He was licking my vagina and touching it.’
A Yeah.
Q Yeah. So what was he touching it with?
A His fingers.
Q So can you tell me what his fingers – where his fingers were?
A They were going all around the thing and eventually they went in the vaginal hole.
Q When you say they were going all around the thing, what thing are you talking about?
A All around my vagina.
Q O.K. And then you said that he put – do you say fingers or do you say finger?
A Fingers.
Q Fingers in your vaginal hole.
A Yeah.
The fifth incident: Charge 9 – Incest (Majority verdict)
Charge 9 was part of the fifth incident. RS alleged that she was coming out of the bathroom, not having dried herself, when the applicant threw her onto the bed, knelt on the floor, and licked her vagina.
Her description in the VARE was as follows:
QYeah. So – O.K. Think about that time when you came out of the bath. Tell me about everything that you can remember.
A I was, like – I didn’t have a towel because I usually always used to forget my towel so I, like, ran to my room and then I tried shaking myself off so I wouldn’t be so wet when I put my clothes on and I already had no clothes on so he came in and just, like, threw me onto the bed and started licking my vagina.
...
Q Tell me about what position you’re in.
A My – like, my feet were dangling over the bed and he was, like, on top of me but he was still kneeling, if that makes sense.
Q So where is he kneeling?
A On the floor.
Q O.K. So if his knees are on the floor, where’s his upper body?
A Near my private parts.
Q O.K. When you say private parts, what do you mean?
A My vagina.
Q O.K. And you said that – what was he doing?
A He was just licking the vaginal hole.
Q So he was licking the vaginal hole.
A Yeah.
Q Your vaginal hole?
A Yeah.
Q With what?
A His tongue.
Q Did he say anything to you when he was doing that?
A No.
The sixth incident: Charge 10 – Indecent act (Unanimous verdict) and Charge 11 – Incest (Majority verdict)
The sixth incident allegedly occurred when RS was having a bath and the applicant walked in wearing a robe. He removed the robe, exposed his penis, and told the complainant to touch it. He grabbed her hand and got her to masturbate his penis, until it was erect (charge 10 – indecent act), before grabbing the back of her head and pushing her head onto his erect penis, penetrating her mouth (charge 11 – incest).
In the VARE, RS said the following:
Q And this bathtub one, you say, happened when you were around 10.
A Yeah.
Q Yeah. You say you were sitting the bathtub.
A Yeah.
Q And he’s come in with this robe on.
A Yeah.
Q And you said he was trying to get you to touch his dick.
A Yeah.
Q So how do you know that? What was he saying? What - - -
A He was, like, pointing to it and saying, ‘Come and touch this,’ and - yeah.
Q And what did you do?
A At first I thought that, ‘No, no way. I’m not doing that.’ But then eventually he, like – he grabbed my shoulder and, like, pushed me to the other end of the bath so that I could be where his dick was.
Q O.K. So that – and then what happened?
A And then he, like, grabbed my head and started, like, making me suck his dick.
The seventh incident: Charge 12 – Incest (Not Guilty – Unanimous verdict)
Charge 12, which resulted in an acquittal, was based on the complainant’s account in the VARE that she told the applicant that she liked Nutella, and that he responded ‘come over here and I’ll show you this’. He then took the complainant to the bedroom and shut the door. The applicant then took out his penis, which had Nutella on it, and said ‘taste this’, but that she had to ‘put it all in [her] mouth’. RS said that she did so for approximately two minutes, then stopped.
In the VARE, RS described the ‘Nutella incident’ as follows:
Q O.K. So I’m talking about – you’ve told me about oral sex where he licks your vagina with his tongue.
A Yeah. I thought of another one.
Q O.K.
A I told him that I liked Nutella ‘cause he asked me what I wanted on my toast and ‘cause it was, like, breakfast time and I said Nutella. And then he said, ‘Well, come over here and I’ll show you this’. So he took me into his bedroom and shut the door and apparently he already had Nutella on his dick for some reason and he pulled it out and said, ‘Taste this’, and I, like – me liking Nutella, I was like, ‘O.K., yeah, I’ll try it’, and there was, like, quite a lot on there so – yeah.
Q So how old were you when this happened?
A I can’t remember.
…
Q … When he - when you talk about this Nutella incident, are you around nine or 10 years old or are you younger? Are you older?
A I would say I'm the same age.
The eighth incident: Charge 13 – Incest ( Unanimous verdict)
The final incident occurred round the time that RS and her two brothers had been playing Monopoly on the balcony. Her older brother, having lost the game, went back inside, followed by her younger brother. The applicant then allegedly put his hands down the complainant’s pants and put his finger in her vagina.
RS described the incident in the VARE as follows:
Q One time we were on the balcony playing Monopoly and my brother lost Monopoly. Like, [BS] lost Monopoly and so he stormed back inside and my little brother followed him ‘cause they were, like, really close. So I was sitting next to [the applicant] and then he started putting his hands down my pants and then I asked him what he was doing and I said it, like, hurt ‘cause he was trying to get it in my vaginal hole again. And I said, ‘It hurts. Don’t do that,’ and then he said, ‘It’s O.K. You’ll get used to it.’
...
Q ... How old are you when this happens?
A Between 10 to 11.
Q O.K. And you said you were on the balcony of whose house?
A Of [the applicant’s] house.
Q And then you said you were playing Monopoly.
A Yeah.
Q And who else was there playing Monopoly?
A [BS] and [KS].
Q So you said Matt put his hands down your pants.
A Yeah.
...
Q O.K. So when he put his hands down your pants, where were [BS] and [KS]?
A They were inside because [BS] cracked it that he lost. ‘Cause he wasn’t winning.
A Yeah.
Q Yeah. And so tell me about what position you were in and what position [the applicant] was in when he put his hands down your pants.
A I would have been, like, slouching like I am now but I would have been a lot, like, smaller. And he was sitting on the right of me and then he just sort of, like, sneakily tried to put it in, like, his … finger in my vaginal hole.
...
Q Now, you said he put his hand down there. So was his hand on the inside or the outside of your underpants?
A Inside.
Q And you told me that he put his finger in your vagina hole.
A Yeah.
Q Yeah. And that – what did you say to him?
A I said, ‘Don’t do that. It really hurts.’
Q And what did he say?
A He said, ‘It’s O.K. You’ll get used to it.’
Q Yeah. And then what happened?
A I, like, pushed his hand away and I sort of sat there for a minute and then I walked off.
Some aspects of the complainant’s evidence under cross-examination
Under cross-examination, RS agreed that she had told a teacher, Ms Garneau, that her brother had ‘more than once’ come into her room naked. When her mother called the police, however, she lied to protect her brother, and said that it did not happen. She lied because she did not want her brother ‘taken away or anything’.
In other cross-examination, defence counsel took RS to an ‘Apple notes’ entry, dated 24 April 2018, recovered by police from the complainant’s iPad. It was in the following terms:[8]
[8]Spelling, syntax and spelling as in original.
i never quite understand why no one really cares about me, like people.
once when i was seven, i have a clear memory of it too, my little brother and my big brother were on the lawnmower, and i wanted to go on too. but i didn’t, because my granddad (let’s call him by his name, [‘dean’]), said no, “it’s not for girls” and the first thing that came to my head was, it’s a lawnmower?? how isn’t it for girls?? but i got over that, i just sat on his grass and looked for a four leaf clover, like i always did, and with my luck, i actually found one, i thought that it was gunna be my lucky day, but things happened with [dean] and shit turned for the worse.
i don’t remember exaclly what i was wearing but i do remember that i had shorts on, and he went to pull down my shorts because they were ‘too high’ and i looked weird or something, but he pulled them really down? like full view of my undies, i went to pull them up so my brothers an him wouldn’t see, but he stopped me, he said “let’s go back inside” and he carried me inside, and that’s when shit got real, i freaked out.
he chucked me onto his bed, walked out and shut the door behind him, i didn’t know what to think, was he going to kill me? i didn’t know what rape was when i was seven, but shortly learnt. he said something to the boys i think, but they stayed out there for what felt like hours, because i couldn’t see them, or anyone for that matter.
i can’t remember if he was dating [female name] or [female name] at that point . i just know i really wanted them to come home, so i could tell them everything that happened, and ask them what he was doing. i mean i was freaking out. why wouldn’t i tell anyone. here’s the catch. as soon as i was thinking about that, he came in, locked the door behind him, and fully took off my pants. “what are you doing?” “nothing’ just let it happen” he said as he continued to undress me and himself. i was so scared
“what are you doing to me?” “keep fucking talking and see what happens” i didn’t know what to do, i felt everything crash down. and i was ready to die. i literally felt like dying
“wanna see something" he smirked. i was too scared to talk, too scared to move.
he was almost naked when [her brother] knocked on the door, he saved my life. or what i thought, i wanted to tell my mum and just cry, but he told [her brother] that he would be out in a second, while he was getting redressed, he said these exact words to me. “if you tell anyone about this, i will slit your throat and kill your family” which of corse i didn’t want my throat silt
Complaint evidence
Complaint evidence was received from several sources.
Jenny Roberts was a teacher. She gave evidence that, in February 2017, RS spoke to her at school. RS said she had been sexually abused by her paternal grandfather between the ages of seven and 10. She said her grandfather would touch her in the genital region ‘and she said she would touch him as well’. Ms Roberts reported what she had been told to the school welfare co-ordinator and to ‘DHS’. Under cross-examination Ms Roberts agreed that she had been reluctant to believe RS
because she was very matter of fact about what she was saying, no other reason than that. She wasn’t emotional when she was talking to me.
Another teacher, Sarah Garneau, gave evidence that in September 2016, RS approached her and told her of an incident two days previously involving her brother, ‘BS’. RS told Ms Garneau ‘that she was in bed and that he came into her room and he was naked and that she screamed out and asked him to move away from her, and then her mum came in after that’. Her brother, RS said, had ‘lay on top of her’. Police had been called. RS said ‘that this had happened before, um, and that she had lied to protect him before’. After that, RS’s mother ‘had put locks on her bedroom door’. RS also told Ms Garneau that ‘an incident had occurred with her [paternal] grandfather’. She said that she had been to her grandfather’s house with her brothers and that ‘they had been sent home and that she remained at the house and he came into her bedroom, lay next to her, and asked her to do things to it’.
John Nicol, a student welfare co-ordinator, gave evidence that he became aware in late February 2017 that RS was making allegations against her grandfather.
Georgia Clark, a youth leader, gave evidence that, at a retreat in September 2016, RS told her that between the ages of nine and 12 she ‘had been abused by someone in her family’. Her ‘specific words were actually that she had been touched inappropriately’ by her grandfather. Under cross-examination, however, Ms Clark agreed that in evidence in committal proceedings she had said that RS did not reveal the identity of the family member who had abused her.
‘EW’, the complainant’s mother, gave evidence that her children began staying regularly at the applicant’s home — ‘probably about once a month’ — in 2011. On 22 February 2017, RS ‘said that her Pop had been touching her’ sexually. Later that evening, she telephoned the applicant and said, ‘I know what you did and I want to kill you’. Police then telephoned her saying that the applicant had contacted them about a threat she had made to him. EW then told police of her daughter’s complaint.
Police investigation
Detective Senior Constable Nicole Baxter was attached to SOCIT (Sexual Offences and Child Abuse Investigation Team). On 22 February 2017, she became aware that the applicant had reported to police that he ‘had received an abusive phone call from [EW]’; and that, when contacted by police, EW told them that the applicant ‘had sexually assaulted her daughter’. Detective Baxter then commenced an investigation.
On 26 February 2017, Detective Baxter conducted a VARE interview with RS. EW refused Detective Baxter permission to speak to the complainant’s brothers. A month later, on 27 March 2017, police executed a search warrant on the applicant’s premises and seized an Apple iPhone 5, an Apple iPad, a HP laptop, an Imitation CD disc, a portable hard drive, a USB and a ‘black lady’s G-string’. Detective Baxter then conducted a recorded interview with the applicant. Further investigation located no photographs of RS wearing a G-string on the seized electronic devices. No forensic testing of the G-string for DNA was conducted.
Record of interview
The applicant told police that he married his current wife on 12 March 2016 — she had moved into his residence in 2012 — his relationship with his previous wife having ended in ‘about 2011’. He said that his relationship with his son, ‘SS’, the complainant’s father, whom he had not seen since June of the previous year, was a ‘roller-coaster’. The applicant described his son’s unpleasant behaviour over dinner the previous June, and a physical altercation that they had.
RS, the applicant said, is ‘a strange one’. He denied doing ‘anything to her’. The applicant told police he was ‘thinking well maybe someone did something to her and I’m gunna be the fall guy’. When told by police it was ‘a good time to bring up’ his ‘defence’ to the allegations, the applicant said
there’s six, seven, eight reasons why she might conjure something like this up, she’s told a story got carried away, couldn’t reverse it. I’ve gone through it a million times. I don’t know. If I had an answer I’d love to be able to say to you that’s why.
The applicant said he was ‘very rarely’ alone with RS, who had accused her brother ‘of doing the same thing’. EW had told him that the complainant’s brother ‘had been touching her up, and — and rubbing on — and doing all these sexual things to her’. When asked specifically whether RS had ‘displayed any sexualised behaviour in front of [him]’, the applicant said:
When she was about 10 she called me into the bathroom, she had clearly being masturbating. I said to her, ‘It’s about time you had a chat to your mother’. She said, ‘If you tell my mother I’ll tell her you’ve been doing it’. From that day I was shitting myself. I thought that’s how easy something can be turned.
When taken through each alleged incident of sexual misbehaviour, the applicant denied any wrongdoing. It is unnecessary to set out the detail. The applicant told police that his grandchildren’s visits were ‘spasmodic’, and that the house was too small for the alleged misconduct to have occurred. His wife was home most nights, and he could not imagine where everyone else was whilst the alleged sexual offending was said to have been taking place.
The conviction on charge 2 cannot stand
Before turning more generally to the contention advanced under cover of ground 1 that all of the guilty verdicts are unreasonable or cannot be supported having regard to the evidence, it is convenient first to consider the verdict on charge 2, which, it seems to me, calls for discrete examination.
In the course of oral argument, and after some prompting by a member of the Court, counsel for the applicant submitted that — quite apart from the combination of factors relied upon to impugn all of the guilty verdicts — the evidence on charge 2 simply could not support a finding beyond reasonable doubt that the complainant’s vagina had been penetrated.
Initially, it seemed that counsel for the respondent was minded to concede that the evidence was insufficient to support a finding of penetration. At the prompting of another member of the Court, however, the respondent’s counsel appeared to reconsider the incipient concession, and was given leave to file a supplementary written submission. In the result, the respondent’s counsel submitted in writing that there was evidence sufficient to support a finding of penetration.
As I earlier indicated, I am of the view that the available evidence on charge 2 could not support a finding that the complainant’s vagina had been penetrated by the applicant’s finger.
At the time of the alleged offending, sexual penetration was defined in s 35(1) of the Crimes Act 1958 to include ‘the introduction (to any extent) by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person’; and vagina was defined as including the external genitalia.
When describing the activity said to support charge 2, RS agreed that the applicant had ‘played with [her] vagina with his fingers’, and said that he ‘just, like, rubbed his fingers, like, all around, I guess’.[9] In my view, there was nothing in this account from which it could be concluded beyond reasonable doubt that the applicant’s finger penetrated the complainant’s external genitalia. The complainant’s description that the applicant ‘rubbed his fingers … all around’ her vagina is far too vague and imprecise to support a finding to the criminal standard that there had been penetration. To my mind, that description cannot support a finding that there had been penetration of the external genitalia.
[9]See [13] above.
The complainant’s description of the activity related to charge 2 may be contrasted with her description in the VARE of the activity founding charge 7, in which she said that the applicant touched her vagina with his fingers, ‘and eventually they went in the vaginal hole’. She said that the applicant’s fingers ‘were going all around’ her vagina — a similar description of the activity on charge 2 — before he put his fingers in her ‘vaginal hole’.[10] Similarly, when describing the activity founding charge 13, RS said the applicant ‘was trying to get it in [her] vaginal hole again’, and did ‘put his finger in [her] vagina hole’.[11] Hence, for the purposes of charges 7 and 13, RS unequivocally and unmistakably described ‘sexual penetration’.
[10]See [17] above.
[11]See [25] above.
It is also instructive to contrast the complainant’s version of digital-vaginal touching with her descriptions of lingual incest. Thus, in relation to charge 3, RS said that the applicant ’licked everywhere … just around [her] vagina’, ‘over one of the holes’ — not the ‘pee hole’ but the ‘vagina hole’ — and went ‘up and down against the hole’ and ‘on the outside of the hole’.[12] And for the purposes of both charge 8 and charge 9, RS said that the applicant licked her ‘vaginal hole’.[13] Quite clearly, for the applicant to have licked the ‘vaginal hole’, his tongue must have penetrated the external genitalia.
[12]See [13] above.
[13]See [17] and [19] above.
Counsel for the applicant at trial did not make a ‘no case’ submission on charge 2. That fact, however, is not an obstacle to success on appeal, since this Court must allow an appeal against conviction if ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’. Notwithstanding the failure of counsel at trial to submit that there was no case to answer on charge 2, the Court simply cannot countenance the applicant’s conviction for such a serious crime when the evidence is so lacking.
Since it was not open to the jury to be satisfied beyond reasonable doubt on charge 2 that penetration had taken place, the incest conviction on that charge must be set aside. But since it is clear that the jury must have been satisfied beyond reasonable doubt that the applicant at least touched the complainant’s external genitalia with a finger or fingers, it is appropriate to substitute a conviction for committing an indecent act with a child under 16. In those circumstances, it will be necessary to resentence the applicant.
Ground 1: Are the verdicts unreasonable or unable to be supported having regard to the evidence?
The applicant’s submissions
There are, the applicant’s counsel submitted, 13 reasons why the Court should conclude that the guilty verdicts are unreasonable and cannot be supported having regard to the evidence. In summary, they are:
· first, the case against the applicant rested entirely upon the evidence of RS, yet her version was riddled with ‘internal inconsistencies’;
· second, the ‘Apple notes’ document written by RS ‘reads like a story’ and contains allegations substantially different from her earlier accounts;[14]
[14]See [27] above.
· third, RS ‘moulded’ her evidence;
· fourth, the complainant’s evidence contained a number of ‘embellishments’ and ‘acknowledged lies’;
· fifth, the jury did not accept the complainant’s evidence concerning the ‘Nutella’ incident;[15]
[15]See [22]–[23] above.
· sixth, RS had been involved in ‘attention-seeking’ behaviour;
· seventh, the complainant’s behaviour was inconsistent with that of someone who had been sexually abused;
· eighth, the complainant’s evidence was not corroborated by any other evidence, in circumstances where corroboration might be expected if her evidence was truthful and reliable;
· ninth, the complainant’s account was ‘implausible’, given that the applicant’s home was very small, and, on her own account, there were ‘always people around’;
· tenth, there was a history of significant ‘discord’ between the applicant and his son, the complainant’s father;
· eleventh, it was the applicant who reported the allegations to police after being threatened by the complainant’s mother;
· twelfth, the applicant made ‘strong denials’ in his record of interview with police; and
· finally, the applicant was a man of good character.
Discussion
None of the thirteen factors relied upon by the applicant’s counsel lead me to the view that the jury must have entertained a reasonable doubt about the applicant’s guilt.
Recently, in Pell, the High Court once more considered the manner in which a contention that the jury’s verdict is unreasonable, or cannot be supported having regard to the evidence, is to be resolved. Reaffirming the authoritative statements in M,[16] the Court observed:[17]
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,[18] 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.
[16]M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
[17]Pell v The Queen (2020) 376 ALR 478, 486 [39] (‘Pell’) (citation as in original).
[18]Section 276(1)(a) of the Criminal Procedure Act 2009.
As is clear from Pell, for the purposes of this case the Court must assume that the jury assessed the evidence of RS to be credible and reliable. The Court must then examine her evidence to see whether — despite the jury’s assessment that she was credible and reliable — it reveals inconsistencies, discrepancies or other inadequacies, such that the Court is satisfied that the jury, acting rationally, should have entertained a reasonable doubt about guilt. As part of its examination of the record, the Court must also consider the other evidence in the case, to see whether — notwithstanding the jury’s assumed assessment that the complainant’s evidence was credible and reliable — the jury, acting rationally, should have entertained a reasonable doubt about guilt. Of course, the examination of the complainant’s evidence, and the other evidence in the case, is not to be undertaken in a piecemeal fashion, the combined effect of the evidence being important. Thus, in Pell, although it had to be assumed that the jury assessed the complainant’s evidence to be credible and reliable, the ‘compounding improbabilities’ caused by other unchallenged evidence in the case required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt on particular charges.[19]
[19]Pell, 501 [119]. See also 502 [127].
Turning to consider the factors relied upon by the applicant’s counsel, it may be acknowledged at the outset that the applicant had previously been of good character. As a result, in his charge the judge gave the jury conventional directions that the applicant’s good character could be used when assessing the credibility of his denials in the record of interview, and as bearing on the unlikelihood of guilt. There is no reason to think that the jury did not understand or fail to apply those directions, including when assessing what were said to be the applicant’s ‘strong denials’. Self-evidently, however, the applicant’s good character could not be determinative of the jury’s assessment of his denials, or, ultimately, his guilt. At the risk of stating the obvious, history is littered with examples of people of previous good character committing sexual (and other) offences.
Moreover, as cases such as Hughes[20] demonstrate, men of otherwise good character have been known to commit sexual offences against children brazenly, in circumstances of high risk. Thus, the fact that the applicant’s home was ‘tiny’, and, on the complainant’s account, there were ‘always people around’, did not necessarily render RS’s version of events implausible. These were factors that the jury was readily capable of weighing in the balance.
[20]Hughes v The Queen (2017) 263 CLR 338.
So, too, would the jury readily be capable of evaluating the effect of the applicant having gone to police to report EW’s threat. It was open to the jury to consider that it was borne of a desire pre-emptively to portray himself as the victim. Indeed, that is the way the prosecutor put it to the jury in her final address:
And you heard evidence from [EW] that there was a dinner to celebrate [BS’s] birthday that evening, the family was going to be there together with his girlfriend. Her evidence was that before they went to the restaurant, she telephoned [the applicant] on his mobile phone and said, well, made a threat essentially.
Later that evening, same evening, [the applicant] goes to the police. He goes to the police … to report the threat made by [EW] and said he feared for his safety. That of course, triggers the police investigation. So, this comes about as a direct consequence of the action of [the applicant] in going to the police. One submission from me, members of the jury, could it be that going to the police might amount to, what might be considered a pre-emptive strike? Because it’s clear, clear to [the applicant] by that stage, that [EW] knows about – that there are allegations.
It’s just a matter for consideration, there’s no evidence of that at all, but lest it be submitted that he’s gone to the police himself because he has nothing to hide, there is potentially another spin that could be put on that. ...
With respect to suggested inconsistencies, the applicant’s counsel submitted that the complainant’s version was riddled with internal inconsistencies as to dates, the description of events and other matters. I need not recount the supposed inconsistencies in any detail. It is enough to say that they were fully exposed for the jury’s scrutiny — being the subject of cross-examination and argument — and that the jury was capable of evaluating their effect on the complainant’s credibility and reliability. None of them struck me as so compelling that they must have led the jury to reject the major threads of the complainant’s evidence.
In order to gauge the force of the argument concerning the supposed inconsistencies, however, it is worthwhile examining one which the applicant’s counsel appeared to put at the forefront of their submissions. Thus, counsel submitted that the Apple notes document[21] — created on 24 April 2018 for reasons unknown and modified on 11 May 2018 — contained allegations which were substantially different to those that she had made in her VARE on 26 February 2017. The note asserted that an incident occurred when the complainant was seven, when the applicant ‘chuck[ed]’ her on the bed and ‘fully’ took off her pants, before saying ‘if you tell anyone about this, I will slit your throat and kill your family.’
[21]See [27] above.
Notably, so counsel submitted, RS did not at any stage report a threat to kill to police or to the ‘complaint’ witnesses. Furthermore, the account in the note was broadly similar to the complainant’s description of an ‘uncharged’ incident occurring on the lawnmower.[22] During cross-examination, however, when asked whether there were two incidents involving the lawnmower, the complainant said ‘no’. But when the inconsistencies between the two accounts were put to her, RS gave evidence that ‘there were other times on the lawn … I remember being two times on the lawn but not all of them surrounded the lawnmower.’ This, counsel submitted, was despite the fact that the ‘Apple notes’ document specifically referred to a lawnmower, and that, when asked by the prosecutor at the special hearing whether she would like to ‘add anything’ to the VARE, RS answered ‘no’. Counsel for the applicant submitted that these passages ‘demonstrate the complainant’s ability to attempt to mould her evidence — albeit in this instance unconvincingly — to try to explain discrepancies pointed out to her’.
[22]See [10] above.
With respect to these suggested inconsistencies, the respondent’s counsel drew attention to the fact that the complainant gave evidence that the incident described in the Apple notes document was on a different occasion to the ‘lawnmower’ incident described in her VARE. When asked about that in cross-examination, the complainant said that she did not mention this incident because she had forgotten about it when the VARE was being conducted. It is hardly surprising, counsel submitted, that RS might not accurately recall every occasion of sexual offending given that she was young at the time of the offending and at the time of the complaint to police. Importantly, RS confirmed that the occasion described in the Apple notes document was not a fiction.
In my view, if there are any inconsistencies between the Apple notes document and the VARE, these were matters that the jury was fully capable of understanding and assessing. To my mind, these supposed inconsistencies are not of much moment. I agree with the submission of the respondent’s counsel, given her age, it is not surprising that RS might not accurately recall every occasion of sexual offending.
Another factor that counsel for the applicant put at the forefront of their submissions was the ‘bizarre’ allegations concerning the ‘Nutella incident’, which even the prosecutor in her final address described as ‘really bizarre’ and ‘seriously weird’. Counsel submitted that the jury must have rejected the complainant’s evidence, and that such rejection should have had a material effect on her overall credibility and reliability. I do not accept that this is so. It cannot be said that the jury’s verdict on charge 12 necessarily means that the jury disbelieved RS. The verdict may mean no more than that the evidence engendered a reasonable doubt in the jury’s collective mind.[23] For my part, having regard to some of the grotesque sexual offending that the Court is accustomed to encountering, sadly I do not consider the Nutella incident as described by RS to be particularly outlandish.
[23]See [69]–[78] below.
As to what were said to be other ‘embellishments’ and ‘lies’, once more I consider that the jury were readily capable of assessing their effect on the complainant’s credit. It is unnecessary to go through them all. One that was given particular prominence by the applicant’s counsel, however, involved the complainant’s brother, BS, coming into her room naked and lying on her bed.[24] Having complained to others that her brother had done so, RS lied to the police and told them that he had not. Her explanation in cross-examination for the lie — ‘I didn’t want to lose [BS] or I didn’t want him to, like, get taken away or anything’ — may have struck the jury as being entirely plausible, particularly given the complainant’s age. I cannot see that it necessarily must have impinged upon her credit.
[24]See [30] above.
Further, I am unable to see that the complainant’s supposed ‘attention-seeking behaviour’, or any other of her behaviour, necessarily must have affected her credit adversely. Thus, by way of example, I cannot see that the fact that RS was a bridesmaid at the applicant’s wedding in March 2016 — shortly prior to the end of the alleged period of offending — could be said to be particularly incongruous or counter-intuitive. Common experience suggests that sexually abused children behave in a variety of ways, and are not necessarily outwardly antagonistic to their abusers.
As to the lack of corroboration (where, it was submitted, it might be expected), common experience also is that the lack of any supporting evidence is far from unusual in cases of sexual offending involving a single complainant. In the present case, the applicant’s counsel drew attention (among other things) to the fact that no photographs of RS in a G-string were found upon forensic examination of the applicant’s telephone,[25] and that BS was not called to give evidence relevant to charges 7 and 8 that he had knocked on the door and said, ‘Are you guys having sex?’.[26] It would not have been lost on the jury, however, that the forensic examination of the applicant’s telephone took place three or more years after the photographs were allegedly taken, or that BS was very young when he was said to have knocked on the door and made his inquiry. The lack of corroboration — not only with respect to these matter, but others also[27] — could not dictate that the jury must have had a reasonable doubt concerning the applicant’s guilt.
[25]See [14]–[15] above.
[26]See [17] above.
[27]By way of example, with respect to the bathroom incident (see above [12]–[13]), under cross-examination RS said that the applicant’s wife ‘didn’t look or anything, she just like threw the towel in or handed it’ at a time when the applicant’s pants ‘were down a bit, like to his thighs’. The applicant’s counsel submitted that the prosecution should have been expected to call the applicant’s wife.
Finally, I should observe that there appeared to be no substance whatsoever in the submission that RS made her allegations against a backdrop of family discord. At no time was it suggested to RS that she had been put up to make false allegations by her disgruntled father, SS, or that she had concocted her evidence to please or appease him.
As I have indicated, I am not persuaded that any of the factors relied upon by the applicant’s counsel — alone or in combination — should have led the jury to have a reasonable doubt about the applicant’s guilt on the charges upon which convictions were returned.
Save with respect to the verdict on charge 2 — which stands in a different category to the other charges resulting in guilty verdicts — the first ground cannot be upheld.
Ground 2(a): Is the conviction relating to the ‘Nutella incident’ inconsistent?
Counsel for the applicant submitted that, as in Conolly, the jury’s acceptance of the complainant’s credibility and reliability was a necessary prerequisite to conviction on each charge.[28] Although credit may not be ‘a homogeneous and indivisible whole’,[29] counsel contended that in the circumstances of this case no reasonable jury could have drawn a distinction between the complainant’s reliability and credibility regarding charge 12 and the remaining charges. (Similar submissions were made with respect to charge 3 on one hand, and charges 2 and 4 on the other; and with respect to charge 11 on one hand, and charge 10 on the other.)
[28]Counsel cited Conolly (a pseudonym) v The Queen [2019] VSCA 125, [77].
[29]Counsel cited Avery v The Queen [2014] VSCA 86, [6].
Counsel for the applicant submitted that, in circumstances where the jury acquitted the applicant (unanimously) on charge 12, the Nutella incident, but convicted him on the remaining 12 charges (six of the guilty verdicts being by majority), the jury’s verdicts are ‘factually inconsistent’.[30] There was, counsel submitted, no logical distinction to be drawn between the complainant’s credibility and reliability with respect to charge 12, and her credibility and reliability with respect to the other allegations that she made. Hence, the inability of the jury to accept the complainant’s evidence on charge 12 should, as a matter of logic, have precluded the jury from being satisfied beyond reasonable doubt of the complainant’s credibility and reliability on the remaining charges.
[30]Counsel cited MacKenzie v The Queen (1996) 190 CLR 348 (‘MacKenzie’).
I do not accept these submissions.
In MacKenzie, Gaudron, Gummow and Kirby JJ set out six general propositions concerning inconsistent verdicts. I need refer only to the third, fourth and fifth propositions:[31]
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone[32] is often cited as expressing the test:[33]
“He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense.[34] Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.[35] If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.[36] In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.[37] Alternatively, the appellate court may conclude that the jury took a “merciful” view of the facts upon one count: a function which has always been open to, and often exercised by, juries.[38] The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation.[39] Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman,[40] in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O’Loughlin JJ) observed:
“[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”
We agree with these practical and sensible remarks.
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.[41] …
[31]MacKenzie, 366–7 (citations as in original).
[32]Unreported, 13 December 1954, per Devlin J.
[33]See, eg, R v Hunt [1968] 2 QB 433 at 438; v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966; cf Archbold, Criminal Pleading, Evidence & Practice, 43rd ed (1995), vol I, par 4-457.
[34]See Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172.
[35]R v Wilkinson [1970] Crim LR 176.
[36]Hayes v The Queen (1973) 47 ALJR 603 at 604-605.
[37]R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40.
[38]R v Hunt [1968] 2 QB 433 at 436.
[39]Castles, An Australian Legal History (1982), p 56.
[40](1987) 44 SASR 591 at 593.
[41]R v Irvine [1976] I NZLR 96 at 99; R v Morgan [1981] 2 NZLR 164 at 168-169; R v Cooper (1993) 149 AR 207; Ewaschuk, Criminal Pleadings and Practice in Canada, (1983), §15.2l2, requiring that the verdicts be ”so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion”: R v Peterson (1996) 106 CCC (3d) 64 at 79; cf Hall v Poyser (1845) 13 M & W 600 [153 ER 251]; Bedford v Crapper [194913 DLR 153.
In his charge, the judge directed the jury that each charge on the indictment had to be considered separately. Among others, the judge gave the following instructions:
As I said to you at the start of the trial there are 13 counts against the accused. … [T]here are 13 separate charges, and you must consider them separately, and you are not apply to a job lot in relation to them. And the accused and the prosecution are entitled to have you consider each charge separately on its own, but obviously your assessment of the complainant in relation to each charge is relevant to the other charges. But you have got to be satisfied beyond reasonable doubt that the prosecution has proved the charge against the accused man beyond reasonable doubt in relation to each charge as you consider it separately.
In my view, the verdict of not guilty on charge 12 is consistent simply with the jury having ‘followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt’.
Both the prosecutor and defence counsel gave charge 12 particular attention. Thus, in her final address the prosecutor said:
I just want to make this submission in relation to this particular incident: this, on any view, is a really bizarre allegation. I just want to make this submission, members of the jury. The modes of sexual offending are almost infinite, and they are dependent, I would suggest, on opportunity plus means and the limits of the offender’s imagination. Now that's not evidence, it’s just a submission from me. This is, on any view, seriously weird. But that does that mean that it’s necessarily untrue? That is for you to determine.
And defence counsel, having referred to parts of the VARE relating to the Nutella incident argued as follows:
… So the scenario that she’s painting that the breakfast bar at this small house in [name], [the applicant] asks her what she wants on her toast, and she says, ‘Nutella’. But according to her, he’s already got Nutella on his dick.
How does that happen? If she’d said jam or peanut butter, it wouldn’t have happened? Test that. Test that. Does that pass the test in terms of an allegation you could accept beyond reasonable doubt?
It seems to me that the premise that underpinned the submissions of the applicant’s counsel on charge 12 is that the jury must positively have disbelieved the complainant’s evidence, and, as a matter of logic, that assessment of her lack of credibility and reliability necessarily must have carried over to their consideration of her evidence on the other charges. An aspect of that premise was the notion that, in effect, acting reasonably the jury would have had to have embraced all of the complainant’s allegations, or none of them. In my view, however, that premise is fallacious. As I have said, their acquittal of the applicant on charge 12 does not necessarily indicate that the jury positively disbelieved the complainant’s evidence. The verdict may mean no more than that, given the unusual circumstances of the alleged offending, the jury were prepared to entertain a reasonable doubt as to guilt on that particular charge.[42] Looked at in this way, it is obvious that the verdict may be the product of logic and reason.
[42]See [62] above.
Ground 2(a) is without substance.
Given these conclusions, I am relieved of considering whether the combination of ss 4A(1)(b) and (2) of the Jury Directions Act 2015 required the Court’s reasoning on this ground to be consistent with the provisions of s 44F of the Act.
Ground 2(b) and (c): Is there inconsistency between majority and unanimous verdicts?
Majority verdicts were first introduced in this State by s 7 of the Juries (Amendment) Act 1993, inserting s 47 into the Juries Act 1967. The legislature’s stated reasons for the introduction of majority verdicts are to be found in the Second Reading speech to the Juries Amendment Bill:[43]
The government believes the requirement of a unanimous verdict is a potential source of expense and unfairness where a single, determined juror holds out doggedly and for peculiar or improper reasons against the common view of the remaining 11. A hung jury will lead either to a retrial or, on rare occasions, to a decision by the Director of Public Prosecutions to discontinue the prosecution. The first outcome is an unjustifiable waste of public money, especially when the trial has been long and expensive. Many may see a decision to discontinue a prosecution in these circumstances as unjust. Majority verdicts, which have been introduced in the United Kingdom and several other Australian States do not eliminate the chances of this happening, but they significantly reduce them. They strike an appropriate balance between the principle that guilt should be determined beyond reasonable doubt and the need to manage courts efficiently and fairly.
[43]Parliamentary Debates, Legislative Assembly, 20 October 1993, 1157.
Turning to the arguments, the submissions advanced by the applicant’s counsel in support of ground 2(b) and (c) were, it must be said, novel.
Under cover of ground 2(b), counsel for the applicant submitted that charges 2, 3 and 4 related to different acts during a single incident. Inexplicably, however, so counsel submitted, the jury delivered unanimous guilty verdicts on charges 2 and 4, but a guilty verdict by a majority on charge 3. Thus, so counsel submitted, one juror was not satisfied beyond reasonable doubt of the applicant’s guilt on charge 3 (which involved alleged lingual-vaginal penetration), yet purported to be satisfied of his guilt on charges 2 and 4 (respectively involving digital-vaginal penetration and masturbation). There was no logical basis for these conclusions, given that the alleged lingual penetration was said to have occurred immediately after the digital penetration and masturbation in the course of a single incident.
In a similar vein, in support of ground 2(c) counsel submitted that the jury returned a unanimous guilty verdict on charge 10 (indecent act involving touching), but delivered a guilty verdict by majority on charge 11 (incest by oral penetration). Those verdicts, counsel submitted, cannot be explained on a rational basis, given that both charges arose from different acts during the same alleged incident, and were described in a similar manner by the complainant. The factual basis for charges 10 and 11 were so inextricably linked that it cannot be said that there is any rational basis for distinguishing between them based on the credibility and reliability of the complainant.
Counsel for the applicant acknowledged that the decided cases on appeal involving complaints of inconsistent verdicts hitherto have related to claimed inconsistencies between verdicts of guilt and acquittal, but submitted that the underlying rationale which justifies the allowance of such appeals applies equally to inconsistencies between majority verdicts and unanimous verdicts. Counsel submitted that there are no ‘hard and fast rules’ as to the circumstances in which verdicts will be held to be inconsistent.[44] Finally, counsel submitted that the verdicts in this case presents as ‘an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’.
[44]Counsel cited MacKenzie, 368.
I do not accept these submissions. The principles that inform the resolution of alleged inconsistency between contemporaneous verdicts of guilty and not guilty cannot apply equally to unanimous and majority verdicts of guilty. A situation where a jury returns a mixture of guilty verdicts, some unanimous and some by majority, is a far cry from the factual inconsistency that can arise from time to time where a jury unanimously convicts on one charge, and unanimously acquits on another, in circumstances that cannot rationally be explained.[45]
[45]See in a different context Martin (a pseudonym) v The Queen [2019] VSCA 60, [79] (Ferguson CJ, Beach and Weinberg JJA).
Section 46(2) of the Juries Act 2000 provides that if a jury, having deliberated for a period of time that the court thinks reasonable having regard to the nature and complexity of the trial, has been unable to agree on its verdict, or has not reached a unanimous verdict, the court may ‘take a majority verdict as the verdict of the jury’.
Hence, the verdicts of guilty returned on charges 2, 3, 4, 10 and 11 are the verdicts ‘of the jury’, no matter that one juror — not necessarily the same juror — has been unable to join with his or her fellow jurors in relation to the verdicts on charges 3 and 11. In my opinion, the fact that one juror could not be satisfied beyond reasonable doubt of the applicant’s guilt on charges 3 and 11 cannot diminish the legitimacy of the verdicts on those charges. Indeed, one of the main purposes for tolerating majority verdicts is to deal with situations such as ‘where a single, determined juror holds out doggedly and for peculiar or improper reasons against the common view of the remaining 11’; or where a single juror, being true to his or her oath or affirmation, is unable conscientiously to join in the verdict of the majority.
I am unable to see that the circumstances of this case permit the inference to be drawn that a single, determined juror held out doggedly and for peculiar or improper reasons. The circumstances are equally consistent with a single juror being unable to bring himself or herself as a matter of conscience, and for entirely proper reasons, to join in the verdict of the other jurors. But in any event, even if it could be inferred that a lone dissentient had refrained from joining in the verdicts of other jurors for illogical or improper reasons, it does not follow that the verdict ‘of the jury’ is thereby tainted. To so conclude would be to undermine the policy which is the foundation of s 46(2), given that majority verdicts exist to ameliorate the mischief thought to flow from a single juror holding out against his or her fellow jurors.
Grounds 2(b) and (c) are without merit.
Conclusion
I would grant leave to appeal against conviction; allow the appeal, limited to the conviction on charge 2; set aside the conviction on charge 2; and substitute a verdict of committing an indecent act with a child under 16. The appeal should otherwise be dismissed. I would resentence the appellant on charge 2 to 18 months’ imprisonment, and order that three months of that sentence be served cumulatively with the sentence on charge 11. The total effective sentence would thus be 12 years and six months’ imprisonment, upon which I would fix a new non-parole period of eight years and three months.
NIALL JA:
I have had the advantage of reading in draft the reasons for judgment prepared by Priest JA in this matter. His Honour has concluded that the convictions on all of the charges for which the applicant was found guilty, other than charge 2, must stand and the challenge to those convictions must be rejected. I agree with those conclusions for the reasons given by Priest JA. With respect to charge 2, however, I am unable to agree that the evidence was insufficient to sustain a finding of penetration. In my opinion, when regard is had to the evidence as a whole, there was sufficient evidence to convict the applicant on charge 2. In the result, I would grant leave to appeal but dismiss the appeal.
Charge 2 alleged that the applicant took part in an act of sexual penetration with his granddaughter by introducing his finger into her vagina. This constituted the offence of incest contrary to s 44(1) of the Crimes Act 1958. At the relevant time, ‘sexual penetration’ was defined by s 35(1) of the Act to include ‘the introduction (to any extent) by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person’. The ‘vagina’ was defined as including the external genitalia.
In Anderson v The Queen,[46] Weinberg JA said:
As soon as there is any penetration by a finger into any part of the vagina as defined, no matter how slight, and no matter how fleeting, and when accompanied by the requisite intention, the offence is converted from an indecent act, into an act of sexual penetration.[47]
[46][2010] VSCA 108.
[47]Ibid [77] (Mandie and Bongiorno JJA agreeing).
As this Court recently observed, ‘if there was evidence of penetration to any extent beyond the outer lips of the complainant’s vagina — the labia majora — that evidence would establish the element of penetration.’[48] In Harrison, the complainant said in cross-examination in respect of one charge that ‘there was no penetration of any form or any way’ but also said in re-examination that the accused’s penis had touched ‘between [the labia].’[49] In respect of another charge, the complainant said that the accused had touched her with his finger ‘in between the labia.’[50] This latter evidence was sufficient to support convictions for sexual penetration.[51]
[48]Harrison (a pseudonym) v The Queen [2020] VSCA 157, [5] (Maxwell P, McLeish and T Forrest JJA) (‘Harrison’).
[49]Ibid [6]–[7].
[50]Ibid [9].
[51]Ibid [13].
The only evidence of penetration came from the complainant. The account she gave in the VARE is set out in the reasons of Priest JA and need not be repeated in full. In what follows I assume a familiarity with the evidence as set out in the reasons of Priest JA.
Charges 2, 3 and 4 all related to the same incident and occurred over a very short time period after the complainant had been lifted from the bath by the applicant. Concentrating on the two charges of penetration (digital and lingual), the complainant’s VARE contained the following evidence:
[The applicant] forced my legs open so he could play with it.
…
[Agreed that the applicant] played with [her] vagina with his fingers.
…
[The applicant] rubbed his fingers, like, all around, I guess.
…
[The applicant] licked everywhere … [e]verywhere of, like, just around my vagina.
…
[His tongue] went, like, over one of the holes. I don’t really know what it’s called but it’s like the middle one.
…
His tongue was, like, going up and down against the hole.
It is notable that the complainant used the same description to describe the conduct of the applicant relevant to charges 2 and 3, that is, she described the applicant using his fingers and his tongue ‘around’ her vagina. Asked to describe what she meant in the context of charge 3, she said that the applicant’s tongue went ‘over one of the holes’ and ‘up and down against the hole.’
Of course, it was necessary for the jury to consider the evidence relevant to each charge separately and the fact that there was evidence to support a conviction on charge 3 could not make up for any inadequacy in the evidence pertaining to charge 2. However, the issue for the jury was to understand what the complainant meant when she said that the applicant had rubbed his fingers ‘all around’ her vagina. Had that evidence stood alone, then I would agree that it might not provide a sure enough basis for a finding of penetration. However, it did not stand alone. The fact that the complainant used the same expression and then went on to explain what she meant in answer to further questions provided evidence on which the jury could rely in assessing what had occurred in relation to charge 2.
In my opinion, the jury was not obliged to assess the evidence in a linear fashion that compartmentalised the evidence in a rigid structure. The jury were entitled to conclude that in rubbing around the vagina the applicant’s finger penetrated the external lips of the vagina in the same way as was described by the complainant in relation to charge 3.
I am comforted in that conclusion by the fact that experienced trial counsel, who had the benefit of the VARE which was conducted on 26 February 2017 well before the special hearing and which was edited before that hearing, did not take any point that the evidence could not support a conviction. Plainly, counsel paid careful attention to the contents of the VARE but did not make a non-case submission on charge 2 or submit to the jury that even if there was touching around the vagina there had been no penetration of the external genitalia by the applicant’s finger. Likewise, experienced counsel on the appeal did not take the point until the matter was raised by the Court.
The fact that counsel did not take the point is not a makeweight and, given the defence was that none of the offending occurred, there was little reason to focus on the point and some risk in doing so. However, the failure to take the point at trial does, to a modest degree, reinforce my assessment that the evidence was adequate to support the conviction.
The appeal against conviction should be dismissed.
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