Henderson v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0185

MATTHEW HENDERSON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 October 2021
DATE OF JUDGMENT:	16 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 312
JUDGMENT APPEALED FROM:	DPP v Henderson (Unreported, County Court of Victoria, Judge Quin, 19 March 2020) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Sexual assault and sexual penetration of child under 12 – Whether verdicts unreasonable or cannot be supported by the evidence – Prosecution case dependent on complainant’s account – Whether complainant credible and reliable – Whether alleged offending improbable – Jury should have had a reasonable doubt about guilt – Appeal allowed – M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123 applied – Criminal Procedure Act 2009 s 276(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr J Shaw	Gallant Law
For the Respondent:	Ms E Ruddle QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
T FORREST JA:

Introduction

On 19 March 2020, a jury empanelled in the County Court found the applicant guilty of sexual assault[1] (charge 1) and sexual penetration of a child under 12[2] (charge 2). The complainant, ‘SW’, was aged seven years at the time of the alleged offending.[3] She was the daughter of ‘SMJ’, then a friend of the applicant.
[1]Crimes Act 1958, s 40.
[2]Crimes Act 1958, s 49A.
[3]SW was born in November 2010.

SW’s allegations against the applicant were contained in a VARE[4] interview with police conducted on Saturday, 29 September 2018. A few days later, on 2 October 2018, ‘MJH’, the applicant’s daughter then aged eight,[5] also participated in a VARE, in which she provided her account of events relevant to charge 2.
[4]Video and audio recorded evidence. See CPA, s 367; and Criminal Procedure Regulations 2009, Part 2.
[5]MJH was born in December 2009.

In the lead-up to the applicant’s trial, on 27 August 2019 evidence was taken pre-trial from MJH, and from SMJ, pursuant to s 198A of the Criminal Procedure Act 2009 (‘CPA’). Further, an intermediary was appointed for SW pursuant to s 389J of the CPA, and a ‘ground rules hearing’ under s 389B was held on 9 September 2020. Pursuant to s 372 of the CPA, SW gave evidence with the assistance of the intermediary at a special hearing conducted on 14 October 2019.

The jury was empanelled on 10 March 2020. In the course of the ensuing trial, SW’s VARE, and her recorded evidence from the special hearing, were played as part of the prosecution case. MJH’s VARE stood as her evidence-in-chief, and she was cross-examined by the applicant’s counsel. Other evidence in the prosecution case was received from SMJ; SW’s grandmother, ‘CMP’; the applicant’s partner, ‘HT’; and from the informant, Senior Constable Renee Beier. No evidence was adduced by the defence, although the applicant’s version of events was before the jury in the form of a comprehensive record of interview with police conducted on 2 October 2018.

The jury retired on 16 March 2020. In the morning of 18 March 2018, the judge gave further directions in answer to three questions asked by the jury.[6] The next morning, the judge gave a perseverance direction. Later that day, at 2.15 pm, the jury returned verdicts of guilty.[7]
[6]The judge stated the questions as follows:
The first one is as follows: ‘Can you give us the legal definition of beyond reasonable doubt?’. Second question is: ‘What are the elements of this case and what law do we apply concerning standard of proof?’. And the third is: ‘Minus the evidence and closing statements review, can you restate your charge instructions?’.
[7]On 8 May 2020, the judge sentenced the applicant to six months’ imprisonment on the first charge, and four years and six months’ imprisonment on the second charge. An order for cumulation resulted in a total effective sentence of four years and eight months’ imprisonment, upon which the judge fixed a non-parole period of two years and 10 months.

Having been granted an extension of time, the applicant now seeks leave to appeal against his conviction on a ground which contends that the jury’s verdict ‘in relation to both charges on which the applicant was found guilty was unreasonable or cannot be supported having regard to the evidence’.

For the reasons that follow, we are satisfied that the jury, acting rationally, should have entertained a reasonable doubt as to the applicant’s guilt. We would therefore grant leave to appeal; allow the appeal; set aside the jury’s verdicts; and enter a judgment of acquittal on each charge.[8]
[8]See CPA, s 277(1)(b).

The evidence before the jury
SW’s evidence

As we have mentioned, SW’s evidence at trial was constituted by her VARE, conducted on 29 September 2018, and the recorded evidence from the special hearing conducted on 14 October 2019.

So far as charge 2 is concerned, police conducting the VARE asked SW to tell them ‘everything about what happened yesterday, without leaving anything out’. SW then gave the following account:

So he was gunna give me a lollipop, so … we were in a room, like, nobody else was there … he told me to close my eyes, he gave me a lollipop the first, like, three times but then the last time … he put his rude part in there … but my friend, his daughter, [MJH], was trying to spy on him but he kept saying to [MJH] to go out and he also says to tell nobody but I didn’t … I told my dad straightaway.

SW told police that the ‘he’ she referred to was ‘Matt’ (the applicant). Matt was, ‘One of my dad’s supposed friends, which I don’t think will be friends after this’. The relevant events occurred at ‘Matt’s house’. She continued:

… so this is very, very late at night … and Matt was drunk … he was drunk and he said he was gunna give me candy … then the thing happened … so he told me to close my eyes … and keep my mouth open … and at the last part he told me to duck a little bit … Then he put it in my mouth. … His rude part. … A willy … [usually used for] Peeing.

SW told police that the applicant kept a lizard in a cabinet in a room off the kitchen (the room with the lizard enclosure being referred to throughout the trial as the ‘lizard room’). Police asked SW to tell them everything that happened in the lizard room ‘from the moment that [she] went in there until the moment that [she] left … without leaving anything out’. SW said:

He gave me the Kit Kat and the lolly, then … he unwrapped the lollipop … he put it in his mouth and then in my mouth and then his mouth and then my mouth and then his mouth and then my mouth … [and then] he pulled down his pants and put – in here … and then he – and he also told – to tell nobody but then after that I told my dad everything … Well, not everything, I told him about the willy though.

The VARE continued:

Q   So when you went into that room – I just wanna make sure that I’ve got this right – he gave you a Kit Kat [and] another lolly. Do you remember what the lolly was?
A   Oh, no.
Q   No. O.K. And you said he gave you some lolly and he had some lolly and he gave you some - - -
A   And then he keeps putting it in his mouth and in my mouth.
Q   And – yeah, O.K.
A   It’s a lollipop.
Q   It’s a lollipop, mm’hm.
A   And then he put – and then he said, ‘O.K., remember this taste - - -’
Q   Mm’hm.
A   - - - and then he said, ‘Now this will taste like a lollipop – like a lolly I’ve gave you before - - -
Q   Mm’hm.
A - - - but it was actually his willy.
…
Q So I just – I wanna go back to the bit where – so he’s given you a lollipop and he said remember that taste.
A   Yep.
Q Yeah. What happened … after that?
A   He put the lollipop in my mouth … and then he pulled it out and said remember that taste … and then … he put his – and then he said this will taste like a lollipop … I’ve gave you before … and it was his willy.
Q   Mm. And tell me exactly what he did with his willy.
A   Put it right on my tongue … and then I opened my eyes straightaway … and his pants was a little downer than it was before.
Q   Mm’hm. So were your eyes closed or open - - -
A   Closed.
Q   - - - at the time?
A   He told me to close my eyes … and keep my mouth open.
…
Q   Now, ‘cause your eyes were closed, tell me how you knew it was his willy.
A   Well, the texture – like, the texture and, like, it – it couldn’t be anything else … and I just think he put his pants up very quickly.

SW told police that she told her dad — ‘me and my dad were on the toilet’ — ‘about the thing’, and ‘then Matt came into the toilet and I kept going behind my dad’. She said she told her dad, ‘Basically what I’m saying to you right now’.

Later, police asked about the location of others, including MJH:

Q   [SW], I just wanna ask you a couple more questions about the room that you talked about … that Matt took you into. When you walked into the room, where – where was everyone else in the house at the time?
A   Everyone was in the living room and stuff … but it – minus [MJH] ‘cause she was trying to spy on him – us.
Q   So [MJH] was trying to spy on you?
A   And Matt. … but then her dad kept seeing her.
Q   O.K. So where – where was [MJH] when she – when they were trying to spy?
A   At the doorway.
Q   At the doorway of the room?
Q   Like, just the hallway.
A   Mm’hm, mm’hm. And Matt was telling [MJH] to go away?
A   Mm’hm.
Q   Mm’hm. When you and Matt were in that room, was the door open or closed?
A   Open.
Q   Open, mm’hm. And when you went in there was there a light on or - - -
A   It was off.
Q   It was off.
A   Wait, no, when I first went in there it was on but … then it turned off.
Q   How did … it turn off?
A   Matt turned it off.
Q   Mm’hm. Did Matt say why he turned it off?
A   Because … he wanted to show me his pet … lizard, like … of a night-time.
Q   O.K. Did he turn the light off before or after he sorta gave you the lollies?
A   After.
Q   It was after. What about … when you said he put his willy in your mouth, was the light on or off at that point?
A   On - - -
Q   Mm’hm.
A   - - - blah – off.
Q   It was off? Mm’hm.
A   Yeah.
Q   O.K.
A   I accidentally said ‘on’.
…
Q   Mm’hm, O.K. So if the light was off when you said you opened your eyes, how well could you see at that point?
A   Oh, not very well.
Q   Mm’hm. So what do you remember seeing then?
A   Just him with his pants down a bit from before and … his lizard – ‘cause the lizard had a red light because he can’t see.

Before continuing, it is convenient to take note of the main aspects of SW’s account of the alleged events in the lizard room:

· MJH was in the hallway at ‘the doorway’ to the room — everyone else was in the living room — ‘trying to spy’, but ‘her dad kept seeing her’ and was telling her to go away;

· the door to the room was open;

· when she and the applicant first entered the room the light was on, but the applicant turned it off after he had given her lollies;

· the applicant told her to close her eyes and keep her mouth open;

· the applicant unwrapped a lollipop, put it in his mouth and then her mouth — SW indicated that occurred three times — and said, ‘O.K., remember the taste’;

· the applicant told her, ‘Now this will taste like a … lolly’ he had previously given her;

· then, whilst her eyes were closed, the applicant ‘pulled down his pants’ and put his ‘rude part’ (or ‘willy’) in her mouth, ‘right on [her] tongue’;

· even though her eyes were closed, she knew it was the applicant’s ‘willy’ in her mouth because of the ‘texture’, and because ‘it couldn’t be anything else’;

· she opened her eyes straight away, but could not see ‘very well’;

· she thought that the applicant ‘put his pants up very quickly’, his pants being ‘down a little bit from before’; and

· ‘at the last part’ the applicant had told her to ‘duck a little bit’.

It is also convenient at this point to note that, shortly after these alleged events, SW told her grandmother, CMP, that MJH had tried to come into the lizard room, but that the applicant had held the door closed to prevent her from entering.[9] Further, in a recorded telephone conversation (‘pretext call’) that SMJ had with the applicant on 29 September 2018, SMJ suggested to the applicant that he had taken SW into the lizard room and shut the door behind him.[10] Plainly, that suggestion can only have come from SW. As will become clear, the significance of that claim lies in the fact that other unchallenged evidence revealed that there had never been a door to the lizard room.
[9]See [41] below.
[10]See [56] below.

As to the circumstances of the first charge, SW gave the following account in the VARE:

Q   … Tell me everything you can remember about the other time that something’s happened.
A   Well – so apparently me and him were going to plug in a – a computer charger to – for me to play .......... and watch videos. … but then he .......... put his hand in there and went … on my … rude part.
…
Q   A few months ago, O.K. And you said that you were going to get a charger?
A   Yeah, for my computer.
Q   For your computer. Where were you when you [were] going to get your charger?
A   In my dad’s room – well … I sleep in with my dad so basically our room.
…
Q   Tell me everything that happened.
A   It was late at night so that’s why I had to go to sleep.
Q   O.K.
A   So he came over, had a few beers with my dad … and then he said he was gunna get – I was – I wanted to play computer in my bed … so he went with me to get my computer charger and we put in it – put it in me and my dad’s room and – but then he started to – [gestured rubbing vagina] … on me.
…
Q   Now, I know a little bit earlier, you – you sort of showed me or tried to show me what Matt did in the bedroom. I want you to do your best to remember what Matt did in the bedroom.
A   So he – so he, like, pulled down my pants a little bit … went, like, through my underwear and then … did that.
…
Q   Mm’hm, O.K. Do you – when – when Matt has started to sort of touch you or sort of what you – what you were showing me, did he go sort of was it underneath your clothes or was it over the top of your clothes?
A   Underneath my pants.
Q   It was underneath your pants. And what do you remember feeling when he’s gone underneath your pants?
A   Like a scratching thing.
Q   Mm’hm. Could you feel that on your skin?
A   Yeah.
Q   Yep.
A   I think.
Q   Mm’hm.
A   Like, it – it go through the underwear and stuff - - -
Q   O.K. And, [SW], what part of your body did Matt touch?
A   Rude part.
Q   Rude part. What – what else would you normally call your rude part?
A   Vajayjay.
Q   Vajayjay. And what is your vajayjay normally used for?
A   Peeing.
Q   Mm’hm. So - - -
A   Wait, if I – oh, I wish I was lucky that night, if I needed to pee I could’ve peed on his hand. … Then I would’ve destroyed him .......... having bad – that would be instant karma. Oh my God.
Q   Oh – so, [SW], do you remember at the time, when his hand was there, was he touching your undies or was he sort of touching skin?
A   I don’t remember … but I think it was touching undies.

SW then told police that she did not say anything because the applicant told her not to say anything, and ‘That’s what kids do, they listen to … adults’. She also told police that the applicant also told her not to say anything after the incident in the lizard room.

Once more, before continuing, it is convenient to take note of the main aspects of SW’s version of events relevant to the first charge. SW told police that the applicant:

· ‘had a few beers’ with her dad;

· went with her into the bedroom she shared with her father to get a charger for her computer so that she could ‘play computer’ in bed;

· put the charger in the bedroom then touched her;

· ‘pulled down [her] pants a little bit’, and touched her on her ‘rude part’ (or ‘vajayjay’) underneath her ‘pants’ (albeit she thought his hand ‘was touching undies’).

In the course of the special hearing on 14 October 2019, SW said she told the truth in the VARE. Significantly, she then gave the following evidence:[11]

[PROSECUTOR] Is there something you want to change in what you said to the police?---In the – yes.
What would you like to tell us?---I, um, didn’t remember it, um, a part correctly. Um, it was – it wasn’t a door, it was a curtain.
You told the police lady about something that happened in a room with a door and you want to change that now. Is that right?---Yes.
Is the change to make it a curtain instead of a door?---Yes.
Is there any other change you want to make?---Not currently.
Having made that change have you now told us the truth about what happened?---Yes.

[11]Emphasis added to this and following passages.

When cross-examined by the applicant’s counsel, SW’s evidence included the following:

Did you go into the room where the lizard tank was?---Yes.
Was the lizard tank near the front door?---Yes.
When you went to the lizard tank was Matt with you?---Yes.
Was [MJH] with you as well?---Not, but she tried to sneak in and have a look but then – yeah.
[MJH] says that she was there. Was [MJH] there?---She did try to peek in but then Matt stopped her, Matt stopped her.
How did he stop her?---Um, he blocked her from coming in. Are you talking about the curtains coming back, boom?
… Could you say that again please?---Matt stopped, um, [MJH] by, um, using the curtain.
When you were in the lizard room was the light on?---What light do you mean?
The normal light in the room?---No, only the lizard light was on.
What’s the lizard light?---The red light that is in the lizard’s tank.
Did Matt turn the main light off, did he?---Yes, he did.
Matt says that he didn’t turn the light off. Did Matt turn the light off?---He did, he did. It was like this, dark room, with only a little red light shining behind me.
While you were in the lizard room with Matt did [MJH] come in?---She didn’t come in fully, um, but she peeked, um, around the door frame, like there’s a door frame and then like a curtain.
What colour was the curtain?---Don’t know, don’t remember.
Where was the curtain?---Um, in the door frame.
After you were in the lizard room did you go and talk to your dad?---Yes, I came straight away to my dad and told him about what happened.
Was your dad in the bathroom?---No, he was in the kitchen but then – then I took him to the bathroom so I could talk to him without Matt knowing, but do you think that’s an inconsistency? I just made it so it can’t be.
…
In the car [going home], did you tell your dad what happened with Matt?---Yes, I told him the first time in the car but then I didn’t tell him about that ‘cause he already knew that’s why he went out straightaway.
So in the car, did you tell your dad what happened at Matt’s house in the lizard room?---I – no, um, like I said, I told him in the time frame that was um before we even got in the car and when we went into the bathroom.
When you told your dad about that, did you say anything to your dad about a curtain?---I didn’t remember it correctly at the time but now that I’ve remembered it, I did say about the door to my dad but then I corrected it later on.
The next morning, so the morning after you’d been at Matt’s house, did your grandma [come over] to your house?---No, she – I’ve called her on the phone.
Did she come over to your house that morning?---No, she called um the phone.
When she called you on the phone, did you tell her what happened with Matt?---Yes.
On the phone, did you tell your grandma that you were in the lizard room with Matt?---Yes, I told her all the details that were in the police report.
Did you tell your grandma about a curtain in the lizard room?---I didn’t remember it that – at that time. So long story short, no.
Sorry, I didn’t hear that?---So long story short, no.
...
... I’ll ask it again. When you spoke to your grandma on the phone in the morning, did you tell her about a curtain?---No, because um I didn’t remember at that time so long story short, I didn’t. Hello.

…
Did you talk to your dad about what you said in the video [i.e. the VARE]?---In the video – said?
So after you did the video, after it, did you talk to your dad about what you said in the video?---No, I don’t believe.
Did you talk to your dad about the lizard room?---Yes, I told them the night that it um happened.
Did you talk to your dad about the lizard room any other time?---Um when we – wait, no. No. No.
When did you decide that you wanted to change something you said in the video?---Once my dad went like, ‘Dedededede’, um he said, ‘Um are you sure it wasn’t a curtain?’. Then that just jogged my memory – it like – well, I thought it wasn’t just a curtain and that jogged my memory.
Did your dad say to you, ‘Are you sure it wasn’t a curtain?’?---’Are you sure’ – yep. Like, ‘Are you sure it wasn’t a curtain instead of a door?’. Like that way.
When did he ask you that?---Um I don’t remember the exact time.
Did he ask you that after you’d done the video?---Yes, after. And then I go, ‘Yeah, it was’.
Did your dad say that you should tell people that you wanted to change what you said in the video?---Um no. Only tell the judges and stuff.
...

Although we will later return to these aspects, it is once more convenient at this juncture to note three things. First, SW’s assertion that there was a curtain on the lizard room — which the applicant used to stop MJH from entering the room — was in direct conflict with the version that she gave the morning following the critical events. As we have mentioned,[12] SW had told her grandmother that the applicant had taken her into the room and shut the door behind him, that version having been put to the applicant by SMJ in a pretext call that same day. Secondly, it is tolerably clear that SW changed her account, so as to allege that the applicant stopped MJH from entering the room by ‘using the curtain’, only after her father suggested to her that there was a curtain. As SW put it, her father asked: ‘are you sure it wasn’t a curtain?’.[13] Thirdly, for a child of her age SW seemed remarkably attuned when giving her evidence to the possible need to deal with alleged inconsistencies, so much suggesting possible contamination. Hence, by way of example, one of her answers was, ‘Um, he blocked her from coming in. Are you talking about the curtains coming back, boom?’; and another was, ‘No, he was in the kitchen but then … I took him to the bathroom so I could talk to him without Matt knowing, but do you think that’s an inconsistency? I just made it so it can’t be’. It is to be noted in this regard that, when giving his evidence, SW’s father was at some pains to volunteer that he had ‘never coached [her] what she had to say’, and that he would ‘take a polygraph test if [he had] to do that’.[14]
[12]At [16] above. See also [41] and [56] below.
[13]See also [36] below.
[14]See [36] below.

MJH’s evidence

As we have indicated, MJH, the applicant’s eight-year-old daughter, took part in a VARE with police on Tuesday, 2 October 2018. It included the following:

Q   Now, [MJH], tell me what you’ve come to talk to me about today.
A   My mum said that I was coming to talk to you about dad hurting [SW], but I don’t think that was [what] happened ‘cause I was there the whole time.
…
Q   So you said before that you don’t think that your dad hurt [SW] because you were there the whole time. What time are you talking about?
A   When they were in the room together, I was there the whole time watching them.
…
Q   … What things did you do when they [SW’s family] were over for a visit?
A   We played, we had dinner and then we started to play – settle down, and then [SW] started whinging and stuff about the thing. And then that’s when dad brang Rango [the lizard] out, and then after he put Rango away he was – yeah. And he – he told me to set up the Sega with [SW], and we started playing Mortal Kombat. And then, yeah, and they went home after they watched a TV show.
…
Q   ... Now, you said [SW] started whinging. So tell me all about that.
A   ‘Cause I branged the lollipop in and I was going to give her one, and then – and – but then she ran into the bathroom to her dad, started crying when – and then I threw a Flake and she – we went to go play and stuff.
Q   Mm’hm. So you said you gave her a lollipop and she started crying, and then she ran to her dad in the bathroom. Where were you when you gave her the lollipop?
A   In the bathroom. Well, out, like, near the front of the bathroom, like, where the table and stuff is.
Q   Mm’hm. And tell me about where you got the lollipops from.
A   My mum and – and dad’s showbag they were sharing. … And, yeah, that’s where I got them from – from.
Q   And where was the showbag?
A   It was up on top of my mum’s wardrobe.
…
Q   ... So what happened after [SW] ran to her dad and then you threw her a Flake?
A   She was O.K., and then we went to go and play, and mum called me for dinner.
...
Q   And my mum – well, she was O. K. and then we had dinner, and then dad brought the lizard and stuff. … So, yeah, that’s what happened.
Q   Mm’hm. What did you do with the Flake and the lollipop that you gave her?
A   I think she ate them both.
Q   Mm’hm. And tell me about your dad taking Rango out.
A   He went to the lizard room. He went to the kitchen where [we] were and he branged Rango out. And then [SW] went to go into the lizard room with my dad to put Rango away ‘cause she started getting – I think scared ‘cause it’s so loud out in the kitchen. And, yeah, that’s what happened.
Q   Mm’hm. You said she was getting scared because it was loud in the kitchen. Who was getting scared?
A   My lizard. … Rango.
Q   So I want you to think about when dad was leaving the kitchen to go and put Rango away. I want you to tell me everything that happened in as much detail as you can, and try not to leave anything out.
A   He went in the – Rango’s room. He came back out for a minute and then they grabbed the worms to feed the lizard, and he put it in the tank. And then dad went go and say – talk about the lizard, what happens when she’s – she shreds and stuff and how she got – her skin colour changes. And they came back out and they started to, like, we all started to play again on the trampoline late at night.
Q   Mm’hm. So you said they went into the lizard room. Who’s ‘they’?
A   My dad and [SW].
Q   Mm’hm. And where were you?
A   I was near my room. So that’s pretty much where that happened.
Q   So you were near your room? … Mm’hm. And you were saying some of the things that you could hear about your dad telling [SW] about the lizard. Could you hear from your room?
A   I wasn’t in my room. I was – the corridor was here and I was where – they were around that area and then the door’s there. So I was, like, looking through that – where it was. And then I couldn’t see properly, so I went to go and see my sister. But I could still see what’s going on.
Q   Mm’hm.
A   So that’s pretty much all that I know about whatever happened.
Q   Mm’hm. So when you were looking at dad and [SW] in the lizard room, describe their positions.
A   [SW] was standing close to the wall. Dad was kneeling down close to the lizards, so [SW] could see his face. So she didn’t have to be worried about anything, ‘cause she gets worried a lot. And then that was their position where they were standing and moving around with.
…
Q   Mm’hm. And then you said that – before you said dad put the lizard away and then they came out of the room. What happened after that?
A   Yeah, we started playing. That’s pretty much – and then they had to go after we played some Sega.
Q   Mm’hm. Where did [SW] walk once she came out of the lizard room?
A   She went into the kitchen to me ‘cause we were gunna play Sega. In the morning, like, 4.00 or 3.30 in the morning … and then they went home at 3.30 and I went to sleep at 3.30 in the morning. So did my dad. … And my mum was just sleeping. So that’s pretty much what I all remember from that night and that day what happened.
Q   Mm’hm. Did you go into the lizard room with dad and [SW]?
A   That’s when he told me to get out ‘cause she [the lizard] started to get, like, she started crawling back from her. So she went forward once there was only two people in – and ‘cause [SW] hardly sees the lizard. So I think he wanted [SW] to see them ‘cause we only, like, go in – after school, we see – when we walk in we see the lizard, because she’s sitting in her tank. … Sometimes she’s asleep, but sometimes she’s awake. And that was the only time she’s properly awake at night that late.
…
Q   Why were you looking at what dad and [SW] were doing in the lizard room?
A   So I could see the lizard.
…
Q   Just going back to before when you said you saw dad on his knees and [SW] standing. What part of dad’s body could you see from where you were?
A   He was standing like that against the lizard tank, and then he was, like, he was actually standing up. But he was like that so I think he was, like, half kneeling on his knee. And then he was standing up and then [SW] was right next to him.
Q   Uh’huh, O.K. So you said he was half standing up.
A   Well, it was, like, he was like that and then he – it was, like, kneeling on that and then he was, like, standing up for some reason. Then [SW] was, like, on her knees a little bit. She was like that and she was facing the lizard tank. So was dad. So yeah. … That’s where they were.
Q   And from where you were standing, what side or – of your dad’s body could you see?
A   I could see all of his body parts. So I could see, like, where his hands and knees and stuff were. … ‘Cause he was standing straight and he – his legs – his legs were, like, when they were, like, thingy, they were like that. So I could see both of them. And [SW] was just like that against the thing.
Q   Describe the look on her face.
A   It was like she was smiling at my dad, looking like this. I can’t really smile properly like her – what she – she was just, like, happy.
…
Q   So from where you were standing and where [SW] and dad were standing or kneeling, was there anything between … you guys?
A   There was a gap. … That was a, like, that was that – the gap and, yeah, like, he was on – near the front door. And then [SW] was near, like, the other side of the room and stuff. So – yeah.
Q   How long were they in the room for, in the lizard room?
A   Five or 10 minutes I think. I don’t really know. I think it was, like, three or – or five.
Q   Mm’hm. Tell me everything that you did when dad told you to get out of the lizard room.
A   I didn’t. I just stand there and I watched them for a bit until they came outside, went back in the kitchen .......... I saw them, I .......... afraid to go out. My dad did see me. … So that’s all what happened.
…
Q   When you saw dad bending down near [SW] and Rango was in her tank, what position was [SW] in?
A   She was, like, ‘cause my dad – was a big gap between them. She was just standing up looking at my dad like that and, yeah, that’s what she was .......... that’s when he started talking about what colours she changed and how she – why she changes and how – and sometimes in winter she shreds and stuff.
…
Q   Mm’hm, O.K. [MJH], just so I understand clearly what you’re telling me, just explain to me again, when dad put the lizard away and then dad and [SW] left the lizard room, where did [SW] go?
A   She went into the bathroom. … And then - ‘cause I came in with the lollipop and stuff and that’s where, yeah, that’s where it all happened. Then it stopped until we all played for the rest of the night .......... on the trampoline and we had a fire that night and it was … fine. So that’s all I remember from the night, and I can remember one thing. That – in – and – dad was being kind of mean to me ‘cause – I don’t know why. I just want to go and start the fire …
…
Q   In what way was dad telling you to leave the lizard room?
A   He’s like, ‘Leave now. Leave, leave. Can you please leave? Can you leave now?’ And then he yelled at me and said – so I just went to go and – in my room for a minute to close the door. And then I went to go back and see what they were doing.

MJH’s cross-examination by the applicant’s counsel included the following:

So the order of things as they happened was – tell me if this is right: Your dad brought Rango out to show people first?---Yes.
Then he took Rango back to the tank?---Yes.
With [SW]?---Yes.
And you went with them?---M’hmm.
And then you went to get the food from the fridge – the lizard food?---Yeah.
And you brought it back?---Yeah.
Then your dad and [SW] fed Rango?---Yes.
And you saw them doing that?---Yeah.
And then you went and got some lollies?---Yes.
From your parents’ bedroom?---Yep.
Then you came back out?---Yes.
Then you saw [SW] going to the bathroom, is that right?---Yeah.
Where was she when you first came back out?---She was, I didn’t see them in the lizard’s room, so I just walked to the bathroom cause I heard dad talking and [SMJ] talking and then I heard [SW’s] voice so I went in there and gave her – dad’s like, ‘here, [MJH], we’ll give you a lollypop’ and then I gave her a lollypop and Flake.
How long did it take you to go from the lizard room to get the lollypops and stuff?---Two minutes, I think.
So when did you give [SW] when you heard her cry?---I gave her a lollypop. It was red and it had like a smiley face on it and then I gave her a Flake like a mini Flake like you’d get them in a normal packet. I gave her two of those – pretty sure and then yeah, she - - -
Flake is a – sorry, a Flake’s a chocolate bar?---Yeah.
Where was [SW] when you gave her those things?---She was still sitting in the corner of the bathroom, but she - - -
Was anyone else in the bathroom at that time?---[SMJ] and my dad and that, yeah that’s pretty much it.
….
After you gave her those things, the lollypop and the Flake?---Yes.
Did she stop crying?---Yes.
And was she happy then?---Yeah.
Then the two of you, I think, went and played Sega, is that right?---Yeah.
Mortal Combat is the game?---Yeah.
How long did you play that for?---For like half an hour I’m pretty sure.
And then after that, did [SW] go home?---Yeah, she was meant to stay the night, I think, but she didn’t.
So how long after you finished playing Sega did she go home?---Um well, not after she played – like we stayed the night and she like – well she didn’t stay the night but she was like staying for a bit longer and we were like playing with her Beanie Boos I’m pretty sure on the table.
How long did you do that for?---For like a few minutes until she had to go home.
And did [SW] go home with her dad?---Yes, and her brother.
So you’ve said that you were in the lizard room some of the time with your dad and [SW]?---Yeah.
So when you were in there, were you watching your dad and [SW]?---Yeah.
Was the light on or off?---It was on.
Were you listening to what they were saying?---Yeah.
And they were talking about the lizard, were they?---Yeah.
When you were in there, were there any lollies or lollipops at that time?---No.
Did you see your dad give [SW] a lollipop in the lizard room?---Yeah he gave her like a lollipop that he had in his pocket.
Did your dad tell you to go away?---Yeah because the lizard like doesn’t like crowded places and she gets really stressed and then she’ll kind of get mad and try and bite.
Did you go away?---Um, no. I just stayed – stood there but then I was like crouching at the same time and dad was a bit fine with that because the lizard couldn’t see me, she wouldn’t get stressed.
So when you were crouching, was that when you were down on the floor near the cupboard, is it?---Yeah.
Did your dad ask [SW] to close her eyes?---No.
Did you see your dad pull his pants down?---No.
Or pull them up?---No.
Did you see your dad put anything in [SW’s] mouth?---No.
…

We pause once more to note the following features of MJH’s evidence:

· the applicant brought the lizard, Rango, out of the lizard room;

· the applicant and SW then went to the lizard room to put Rango away because the lizard was getting scared since ‘it’s so loud in the kitchen’;

· the applicant then went out of the room ‘for a minute’ to obtain worms to feed the lizard;

· when MJH was looking at her father and SW in the lizard room, SW ‘was standing close to the wall’, and ‘Dad was kneeling down close to the lizards’;

· the applicant was ‘like, half kneeling on his knee’, and SW ‘was, like, on her knees a little bit … facing the lizard tank’, as was the applicant;

· SW was standing looking at the applicant — there ‘was a big gap between them’ — while the applicant was ‘talking about what colours [the lizard] changed and how … sometimes in winter she shreds and stuff’;

· MJH was ‘there the whole time watching them’;

· MJH crouched so that the lizard could not see her and get ‘stressed’;

· the light was on;

· the applicant did not ask SW to close her eyes, and he did not put anything in her mouth;

· the applicant did not pull his pants down or up;

· SW whinged about a lollipop and ‘ran into the bathroom to her dad [and] started crying’, so, when SW was ‘sitting in the corner of the bathroom’, MJH gave her a Flake and a lollipop; and

· SW ‘was O.K.’ and stopped crying and they ‘went to go and play’.

It is expedient at this point to note a dubious assertion of fact in the respondent’s written case, contained in the following paragraph:

[MJH] confirmed in her evidence that the applicant and complainant were in the lizard room, the applicant had told her to leave and that the complainant and applicant were alone in the lizard room. [MJH] observed the applicant give the complainant a lollipop in the lizard room, she observed the complainant to be on her knees at one point (consistent with the complainant’s evidence that she ‘ducked’ down) and that the complainant left the lizard room and went straight to the bathroom.

If taken at face value, the assertion that MJH ‘observed the complainant to be on her knees at one point’ — the author of the submission clearly sought to suggest that SW’s position on her knees supported the notion that penile-oral penetration had occurred — is apt to be misleading. MJH’s account was that SW was ‘on her knees a little bit’, facing towards the lizard tank (as was her father). The relevant question and answer from the VARE is:

Q Uh’huh, O.K. So you said he was half standing up.
A Well, it was, like, he was like that and then he – it was, like, kneeling on that and then he was, like, standing up for some reason. Then [SW] was, like, on her knees a little bit. She was like that and she was facing the lizard tank. So was dad. So yeah. … That’s where they were.

We also note that the respondent’s written case contained a footnote reference to questions and answers in MJH’s VARE said to support the assertion that MJH saw SW on her knees. Unhappily, that reference was incorrect, and did not allude to the passage immediately above. The Court’s task in verifying the accuracy of a critical fact asserted by the respondent was therefore made far more difficult than it needed to be.

SMJ’s evidence

The complainant’s father, SMJ, gave evidence in the prosecution case.

SMJ said that he had reconnected with the applicant, a former friend, in about October 2016, since his sister was studying with the applicant’s partner, HT.

On 16 March 2018, SMJ said, the applicant came to his home for a ‘boys’ night’. His daughter, SW, and son, ‘EJA’, were present. They had a few drinks, and the applicant accidentally broke a laundry window.

In September 2018, SMJ said, he and his daughter and son went to the applicant’s home one evening for a barbecue. The applicant was not ‘in the best of moods’. While the applicant and his partner were having an argument inside the house, SMJ ushered the children into the backyard where there was a bonfire. The applicant’s partner and younger child, ‘IH’, went to bed at about 11.30 pm, and he and the applicant set up some video games for the remaining children on ‘a Sega mega drive classic console’. SMJ said, ‘Matt brought out candies, there was like a lizard there but we were just kind of pottering around setting up different things for the children to do’. The children were holding the lizard.

SMJ then gave the following evidence:

[PROSECUTOR]: And subsequently at one point, did you go to the toilet area?---Yes, I did.
After you’d finished washing your hands, did anyone else come into the bathroom?---Ah, yes, my daughter did.
And did she speak to you?---Yes, she did.
Did she ask to speak to you privately?---Yes, she did.
Where did you go so she could speak privately to you?---Um we didn’t leave anywhere. I told her if she needed to tell me something she could whisper it into my ear.
Yes?---At which point she did.
What did she whisper in your ear?---She said that she believed that Matthew had tried to put something in to her mouth, under the pretence of giving her a lollipop, um, and made her close her eyes to do so.
Do you recall words she used about what had been done in terms of what you thought she said to you at that time?---What I initially had thought.
Yes?---She said he put, I think he tried to put his thing in my mouth and I thought she said finger, initially because it’s obviously flesh, so I initially thought that’s how I, um, yeah investigated by that, but initially I thought she just said finger.
Well after you thought that and you investigated, did you speak to her further?---Um, yeah I kind of just like, I’m like, ‘Are you sure, sweetheart?’ And then Matthew, I called him in pretty much immediately and asked him what that was about.
Before you called him in, what did [SW] tell you, to the best of your memory of what had happened between her and Matthew?---She had said that Matthew had taken her in to go get the lizard, to put the lizard back … and it was under the pretence of giving her a lollipop as the other children had had candy given to them, dispensed to them … and she hadn’t had one that was to her liking, I guess so they’d gone off to go and get the candy, at which point apparently this thing occurred and that’s when – yeah so that’s basically the timeline that she gave to me in her – duration of a time from when I was in the bathroom.
When she told that to you, what did you do?---As I said, I called Matthew in and I – I said, ‘What’s all this about a lollipop?’ To which he said they were just upset that there weren’t enough lollipops to go around.

SMJ said that after they left the bathroom his children were in the lounge room playing video games and eating candy. Eventually, he and his children left. On the way home in the car, SMJ asked SW for ‘more detail’ about what had happened. SW told him that the applicant ‘had said he was going to give her a lollipop and told her to close her eyes and bob down … and then he – apparently put his thing up – and put it up against her lips at which point she’s pulled … herself back, opened her eyes to see him adjusting and tucking his penis back into his pants’.

According to SMJ’s evidence, SW also told him in the car that there ‘had been one previous occasion with Matthew’. His evidence was:

[PROSECUTOR]: What did she tell you about the previous occasion as to what had happened and when it happened?---It was the night that the window got broken, she said Matthew had gone to the bedroom with her in order to locate a computer charger, and apparently at which point he put his hands down the front of her pants, she was I think wearing a nightie and underwear and he’s put his hands just down in there.
And when he put his hands down the front of her pants, did she tell you whereabouts his hands were?---Um on her vagina, yes, she stipulated that.

SMJ gave evidence that he went to police the next day, 29 September 2018. At the request of police he took part in a pretext call with the applicant. The tape of the conversation, Exhibit H, was played to the jury.

The applicant’s counsel cross-examined SMJ about his conversation with SW in the car. The cross-examination included the following:

And at the time you told the police that, what she told you was very fresh in your memory, she’d only told you the night before, correct?---As I said before it very well may have been. I’ve answered – didn’t I not just answer this question prior?
So you say it was fresh in your memory the next day, the things she told you?---I’m saying certain aspects of it were, the key points were but there are things that I have misconstrued and things I may have embellished myself. As I said, there may have - - -
You might have embellished some of the things she said to you?---I may have, like added things – not necessarily pertaining to the – I know what you’re going at, you are going about there not being a door and a doorframe.
- - - just answer the questions?---Yes, I understand this.
What did you embellish?---Um I would have said that he shut the door behind her, because I misconstrued when she said he was putting – that he had pulled a curtain behind her and that’s how he was preventing his daughter from looking into the room and I – I’m the one that said door. It was never stipulated besides by me and then [HT] corrected me that night, after I made the police report, she called me up and she said, Matt’s sure we don’t even have a door there and that’s when the door issue was first brought up, the night we made the police report. [HT] had called me, I’d spoken to her on the phone and we were out for dinner.
Just a moment. So you made a statement to the police. The next day you’ve signed it?---M’hmm.
You’ve signed an acknowledgement that if it’s false, you’re liable to the penalties of perjury?---Yep.
And obviously you consider this to be a very serious matter?---Of course.
So you put in that statement everything you considered to be important, did you not?---Yeah, I’m assuming so, yes.
In as much detail as you could?---As much as I had, yes.
And it all happened the night before, so there’d be no memory issues?---As I have stipulated, I’m not agreeing with that, there may be some in – discrepancies, as I say, I’m getting second-hand information. I’m just relaying someone else’s story.
Okay. So what [SW] told you in the bathroom, you might not be a hundred per cent right about that?---No because she told – I was there present at that point, so I can reiterate what she told me. Because she told it to me directly.
And in the car she also spoke to you directly, didn’t she?---Yeah.
There’s no one else in the car except [EJA], yes?--Yes, as I said but that’s - - -
Because [he] wasn’t interrupting you?---No, he most likely would have been but there may be miscommunication like that’s – I’m not agreeing that my memory was one hundred per cent clear at that point.
Now, in your statement you said this: ‘We stayed at Matthew’s place for another 30 to 45 minutes after this. Once we got into the car, I talked to [SW] about what happened with the lollipop’?---Yes.
You said that in your statement?---Yep.
And that was true?---Yep.
So you agree that was absolutely one hundred per cent true, the bit I’ve just read to you?---From my understanding, like time frames and stuff are just estimates, so it’s just approximate.
‘[SW] then said she knew it wasn’t a lollipop because it had no flavour and felt weird. She said that she opened her eyes and that Matt was adjusting his pants’?---Yes, correct.
‘I asked her where this happened. She told me that Matthew took her in the room with the lizard’. You said that?---And then I said he shut the door behind him.
Can you just wait, please?---Yep.
You said that your statement?---Yes, I did.
And then you said, ‘shut the door’?---Yes.
‘And told [MJH] not to come in and told me that it was when I was in the toilet’?---Yes.
So you put all that in your statement?---Yep.
And that was the next day?---Yes.
And you signed that, yes?---Yes, I did.
And acknowledged that it was true?---Um yes, and I’ve also amended that and also every time we’ve had a cross examination and stuff I’ve stipulated that that was a mistake on my behalf.
And since then you’ve spoken to [SW] about the case?---No that was the night that [HT] called me, so the night the report was made.
- - - I’m just asking you about any conversations you had with [SW]. You’ve spoken to [SW] about the case, agreed?---I’m sorry, I thought you were finishing something.
You had spoken with [SW] about the case, haven’t you?---In certain context, yes.
Because she said that, in evidence?---In certain context, yes, she has to be prepared. She is a child who’s prep – coming into basically this same situation she wasn’t aware of what was expected of her so I was preparing her for it. I never told her what to say. I’ve never coached what she had to say. I’ll take a polygraph test if I have to do that. Like, I’ll stand by – in my view never coached what she said, barely broached the subject because it’s not something you really want to talk about unless you absolutely have to.
She was asked in her evidence in this court, when it was recorded whether she watched her police video and she said yes, and she was asked if there was anything she wanted to change and she said, ‘Yes, it wasn’t a door it was a curtain’?---Yes.
That’s what she said. Now [the prosecutor] asked this, ‘[SW], apart from talking to dad, [did] anything else help you remember what happened at Matthew’s house?’ And she said, ‘No’?---H’mm.
So her evidence was that the change she wanted to make that it wasn’t a door it was a curtain was as a result of discussing it with you. Would you agree with that?---No, but she was present when I initially brought up that there was no door. We were out for dinner, it was immediately after we made our police statement. The whole family was present at the table and I mentioned to my mother and my sister at the time that oh, apparently there wasn’t a door there, so she is – I amended it on the basis of that.
Okay. So you were sitting around, the night that you made a statement - - - ? That’s right, the 29th.
And your mother made a statement and that [SW] made a statement. You were at sitting around together at dinner?---Yes.
Discussing the issue of whether there was a door on that room?---I came back in – as I said [HT] called me while we were out for dinner. I went outside, had a chat to her. I came back in and started talking to my mother about it.
And that was in front of [SW]?---It was, yes.
And [SW] was involved in that conversation?---No, as I said she may have overheard it, she certainly didn’t put into the conversation whatsoever so she may have – me like going, oh there was no door there, so like that’s a pretty big issue because I said there was a door.
In any event, she’s told the court that as a result of talking to you, she wanted to change her evidence from there being a door - - - ?---I didn't know the door was going to be an issue from.
…
So you would agree with this, I suggest, that she never said anything about a curtain to you?---At which point?
Ever?---It was me that mentioned the curtain.
Exactly. [SW] has never mentioned a curtain to you?---She just said it was pulled shut behind her, so I assume that she meant the door was pulled shut behind her.
If you just attend to the question: she has never at any time ever said to you anything about a curtain?---She stipulated that something was pulled shut behind her. She didn’t stipulate whether it was a curtain, a piece of linen, a sheet or anything along those lines. She said something was pulled shut. My initial response was to assume it was a doorway, a door.
She’s never said to you - - - ?---I just answered your question, that’s the best you’re going to get from me.
Well I’d ask you to answer this question, please: [SW] has never said to you that there was a curtain across the entrance to that room, had she?---She said there was something that was pulled shut behind her.
Well what’s the answer to my question?---As I said, I’m not going to be able to answer your question, I’m stipulating whether there was something pulled shut behind her. What it was I don’t know. Had she said what it was? No, not at any point but - - -
Well, I will persist. [SW] has never said to you there was a curtain across that entrance, had she?---She never said that there wasn’t a curtain, she said something was pulled shut behind her.
So the answer is she’s never said – she never used the word ‘curtain’?---I’m not – I’m not answering your question. I have just done that in a sufficient way.
…
All right, we’ll take that as it is. So what you told the police in your statement about this wasn’t correct?---Pertaining to the door. As I said, I misconstrued what was said. She said something was pulled shut behind her and [MJH] couldn’t see in. The initial assumption would be logically it would be a door or something. I was corrected. I’ve amended everything, it should reflect that. I don’t know why we keep harping on about this door.

SMJ agreed in cross-examination that earlier in the night some food had been squashed into the couch, and SW had a ‘meltdown’. She ‘was crying and just screaming she wasn’t happy’. SMJ characterised SW’s response as an ‘overreaction’.

CMP’s evidence

CMP is SMJ’s mother, and the grandmother of SW and EJA. SMJ has custody of the two children following the death of their mother.

In the morning of 29 September 2018, CMP said, she received a telephone call from her son. She then went to her son’s home, woke SW and said that she wanted to have a chat. Her evidence was:

[SW] told me that when she went, um, down to the party, Matt asked her – ah told her she was – he was going to give her a lollipop and that he was going to show her the blue tongue lizard. So she told me that he took her into the room with the blue tongue lizard. Um the daughter, [MJH], um, wanted to come with them and Matt had told [MJH] no, she was to stay outside and then [SW] said that Matt was – you know like kept on telling [MJH], ‘no, you stay outside’. So [SW] said they went into the room. Matt told her that she was – he was going to give her a lollipop … And he told her to, um, when, duck down, open her mouth and duck down, close her eyes, open her mouth and duck down which she said she did. She said she felt something in her mouth and she said it didn’t taste like a lollipop it was, um, round and it was like skin. Then she said she had her eyes closed. She pulled back. And when she opened her eyes, she saw Matt, um, doing his trousers up.

CMP also gave evidence that SW

told me on a previous occasion that Matt had carried her into the bedroom and he had put, um, went to put her to bed and he put his hand into her underpants. … And touched her on her vagina. … [In] the bedroom she slept in. … It was the evening that Matt had been over to um, the house, and he’d been very drunk and he’d actually fallen through the window, the back window and smashed it.

Under cross-examination, CMP agreed that she had spoken to SW at 11.30 am, and made a statement to police shortly afterwards, at 1.59 pm. She agreed that her statement contained the following account of the earlier conversation with SW:

She told me that Matthew’s daughter, [MJH], tried to come into the room, but he closed the door on her and told her she couldn’t come in. She also told me that he held the door closed to stop [MJH] from coming in.

CMP also agreed that when SW ‘was telling her about the first allegation at [SMJ’s] place, she said that Matthew carried her into the room’.

HT’s evidence

HT gave evidence that she and the applicant had been ‘together for some time’, and lived in a house with their two children, MJH and IH. SMJ and his two children, MJH and EJA, came for a barbecue at their home on Friday, 28 September 2018. When they arrived, the applicant was not at home. HT was a ‘bit short with him’ when he eventually arrived.

A fire was lit in a barrel in the backyard. There was ‘a level of excitement with the kids’, who were ‘running around’ and ‘getting underfoot at times’. HT said that the applicant was trying to get the barbecue ‘up and running’ while ‘the kids were running around everywhere’. While she was in the kitchen cooking, she heard either MJH or IH ‘calling out about the lizard’. The lizard was kept in a ‘big tank on a stand’ in ‘the front entrance of the house’.

HT’s unchallenged evidence was that the lizard tank was located on a wall adjacent to the front door of the house. The tank was located in an area designated ‘Entry’ on a floor plan of the premises, Exhibit F. In the course of HT’s evidence-in-chief, the prosecutor invited her to indicate on the floor plan where the lizard tank was located; and, in the course of her cross-examination, she drew a red rectangle on the plan to depict the position of the lizard tank in the Entry. HT also identified the Entry area where the lizard tank was positioned by reference to photographs, Exhibit G.

Importantly, the floor plan and photographs of the premises demonstrate that the ‘lizard room’ — the ‘Entry’ on the floor plan — is in the nature of a vestibule leading to a hallway. The hallway runs between two bedrooms (to the left of the front door upon entry) and a ‘Meals’ area adjacent to the kitchen (to the right). Very significantly, the doorway leading from the Entry where the lizard tank was located into the hallway is not fitted with a door, and HT’s categorical evidence was that it has never been fitted with a curtain.

HT said that after she heard the children call out about the lizard, she told the applicant to go and see what they were doing. She then heard him say, ‘you need to be gentle with the lizard’. At that stage, ‘the kids … still appeared to be excited’, and ‘were running backwards and forwards throughout the house’.

After the children had ‘finished about half the meal’ they ran out. At some stage, HT said, the applicant appeared to be ‘a bit impatient or angry’ and walked out. The children obtained sticks to toast marshmallows on the fire in the backyard. HT said the children ‘helped themselves’ to ‘Show bags’ that were located on a wardrobe in the front bedroom — they had been to the Royal Melbourne Show the previous day — and MJH and IH gave out lollies. When this was happening, SW appeared to be ‘upset’: ‘She was crying that she didn’t get a lolly’. HT then ‘told the girls to go and get her a lolly and to share’. She then heard SW stop crying.

HT said that she went to bed at about 11.30 pm and watched Netflix on the computer. IH came in and got into bed at about midnight. About an hour later, the applicant came in and there was ‘a short exchange’ before she went to sleep.

Police evidence

Detective Senior Constable Renee Beier, the informant, gave evidence that she had provided SMJ with a recording device on 29 September 2018, and he secretly recorded a telephone conversation that he had with the applicant.

On 2 October 2018, Detective Beier said, she telephoned the applicant. He came to the police station and took part in a record of interview which was recorded on DVD, Exhibit J. The record of interview was played to the jury.

Detective Beier also gave evidence that police took the photographs of the applicant’s residence (Exhibit G) on 4 April 2019 in the presence of HT, who told them that ‘the lizard enclosure’ had been moved from the position it had previously occupied.

When cross-examined, Detective Beier agreed that the applicant ‘has no previous conviction for sexual offences of any kind … Let alone for sex offences against children’. Indeed, he had ‘never even been charged with a sexual offence of any kind’. Detective Beier said that, although the applicant had contacted a lawyer before taking part in the record of interview, he answered police questions and ‘was a hundred per cent cooperative’.

Detective Beier repeated in cross-examination that, when police were taking photographs of the applicant’s house on 4 April 2019, she had been told that ‘the lizard tank had been moved from the front entrance area to the lounge room’. She agreed that she ‘had a good look at that area’ while she was there. There was no door; no curtain; no curtain rail; and no hooks on which to hang a curtain.

Pretext call

In the secretly recorded conversation SMJ had with the applicant, the applicant denied ever touching SW inappropriately. As to the circumstances relevant to the first charge, the applicant said:

I picked [SW] up, we – remember? I picked her up, you were on the beanbag. You were on the – I picked her up, put her in that room with her – like, that single bed, whatever was on the room. … Set the charger up for her and told her that I was gunna get you, and I told you that I put her in her room. … ‘Cause she was – remember she was cracking it that night?
…
She had – she had the computer, she had the computer, right. … I picked her up, I put her into her room. We got the charger – I went and got the charger – I think it was sitting in your room – plugged it into her bedroom wall, and that was it …….. and I told her, ‘I’ll get your dad’. I’m like, ‘I’ll go and get your old man’, and I walked out.

The pretext call also contained the following passage, relevant mainly to the second charge:

SMJ:I’ll just lay it straight out on the table, dude.
Applicant:Yeah, bro.
SMJ:She said you closed her – you told her to close her eyes and you’ll give her a lollipop, and then you’ve, like, rubbed your dick against her lips.
Applicant:Absolutely – dude, fuck, no, man.
SMJ:And - - -
Applicant:Are you serious?
SMJ:Wait, wait, I’m not – not finished, dude. And apparently the night you came over and you’ve ended up falling through my window – at some point during that night, you followed her off to go get a charger for the computer and you’ve touched her vagina.
Applicant:Dude, no fuckin’ way, man.
SMJ:I mean, like - - -
Applicant:No ……….
SMJ:You’ve gotta understand - - -
Applicant:………. dude, that - - -
SMJ:- - - where I’m coming from, dude, like - - -
Applicant:Dude, I tell ya straight out right now, man, no fuckin’ way, dude. I don’t know where that’s come from, mate, but I can tell you now that is not me, dude.
SMJ:Well, you’ve gotta understand the quandary I’m in, because, like, obviously I’ve known you for fuckin’ years, and this - - -
Applicant:Yeah, man ...........
SMJ:But this is – this is my daughter ..........
Applicant: Dude - - -
Applicant:.......... you now, I never - - -
SMJ:The – even the context in - - -
Applicant:- - - ever - - -
SMJ:- - - which she’s - - -
Applicant:- - - touched any kid, bro, ever - - -
SMJ:Even the context - - -
Applicant:- - - in my life, dude.
SMJ:- - - in which she’s - - -
Applicant:I’ve got two little girls - - -
SMJ:- - - described it - - -
Applicant:- - - of my own.
SMJ:It’s not – like, ‘Close your eyes and get a surprise,’ basically. Like, these aren’t - - -
Applicant:No - - -
SMJ:- - - things that she - - -
Applicant:- - - way, man. I can tell you now, there is no fuckin’ way I’d ever do anything like that - - -
SMJ:See, I’m - I’m fuckin’ - - -
Applicant:- - - ever.
SMJ:I’m in - I’m in - - -
Applicant:Seriously - - -
SMJ:Like - - -
Applicant:- - - man.
Applicant:Mate - - -
SMJ:- - - the gravity of a situation - - -
Applicant:I’m telling you now, I have never touched your daughter …….. touched a kid, mate. I don’t know where that has come from, [SMJ].
SMJ:I mean like - - -
Applicant:I’m telling you now, that’s – that has made me physically ill.
SMJ:I have no idea - - -
Applicant:Like - - -
SMJ:- - - dude. Like, I don’t know where - - -
Applicant:You - - -
SMJ:- - - it came from - - -
Applicant: You - - -
SMJ:- - - but she came – but - - -
Applicant:You .......... saying that to me now - - -
SMJ:But she came immediately - - -
Applicant:- - - is making me - - -
SMJ:- - - into that room yesterday after the lollipop thing and she told me that you’d done that – immediately. She came immediately into that room, and that’s why I called you in and asked you about the lollipops. And I’ve walked out - - -
Applicant:Yeah.
SMJ:- - - and [MJH] had the lollipop in her mouth, and I just - - -
Applicant:Mate - - -
SMJ:- - - assumed - - -
Applicant:I had the – I had the .......... I had [MJH], I had [IH], right, I had that bag, the – my show bag.
SMJ:Apparently, you took - - -
Applicant:………
SMJ:- - - her into the room with a lizard and shut the door, told - - -
Applicant:Yeah.
SMJ:- - - [MJH] to keep out for a moment, shut the door - - -
Applicant:No.
SMJ:- - - behind you, and that’s when it happened, that’s – this is – look, I’m just – I’m just relaying what the information that was given – mate, I’m fuckin’ – my heart is fuckin’ broken.
Applicant:……..
SMJ:Mate, like - - -
Applicant:Dude, my - - -
SMJ:The fuckin’ - - -
Applicant:Right now, I’m feeling physically fuckin’ sick that this is – mate, I’m telling you now, at the deep of my heart, mate, I would never, ever, ever do anything like that - - -
…

The record of interview

The applicant’s lengthy record of interview with police commenced at 1.10 pm on 2 October 2018, and concluded at 6.00 pm. He made complete denials of any sexual impropriety involving SW.

Among other things, with respect to the events of 28 September 2018, the applicant said:

… I took the lizard out of the cage, showed the – the kids the lizard. I got a big bearded dragon at home. … I was showing the kids the bearded dragon, letting them play with it, like, pat it and stuff, whatever … freaking ‘em out a bit with it or whatever. … They kept nagging me and nagging me for lollies ‘cause I’d mentioned that about the lolly bags that we got from the show. … So it was just a constant hounding, ‘Please, can we have lollies now? Can we have lollies now?’ I said, ‘Just give me a minute, put this away’, and whatever and they kept nagging me. So I was holding the Lizard, I went – like, this is in the lounge room when they kept nagging me. I went into my bedroom, I grabbed the lolly bags from on top of the cupboard where [HT] was laying … right, went out, they kept nagging me. I started walking through the kitchen, I got the lolly bags, I put the lolly bags on the table. I said, ‘Don’t touch ‘em’. I went around, like, the hallway and then you’ve got the front door here, you’ve got my – my lizard’s tank there. I had [SW] following me and I had my daughter following me. … And then got to the cage, I put – I put – I was putting the – the lizard in the cage and then [MJH] was in the hallway saying, ‘Give – we want the lollies now’, just typical, you know, nagging, right. Then [SW] was asking for ‘em. I’m like, ‘All right, let’s – we’ll go get ‘em’. And then [MJH] kept – she’s like, ‘We just want the lollies, I want the’ – I’m like, ‘[MJH], just go away’. And when I said that, I was walking back into the kitchen … right, got the lolly bags. But then I noticed [SW] walked into the bathroom where [SMJ] was. … She came out upset. Me and [SMJ] continued to chat, do whatever … gave the kids lollies. That was it. It was probably, you know, 3.00 or 4.00 in the – 3 o’clock in the morning. He’s like, ‘I’m going home’. I’m like, ‘Right, no worries’. That’s when he spoke to me the next day and told me about – I’ve done something.

He later said:

It’s exactly as I said. I had – I went and got the lizard out, went out to the lounge room, shown the kids the lizard. They were mucking around with it, I was playing around with it, whatever. I told ‘em about the lollies earlier in the day so then they were asking me about the lolly bags. I was holding the lizard, I went down to – into the bedroom, I got the lolly bags from the cupboard in our bedroom where [HT] was laying. Walking back out, they kept nagging me and I said, ‘Don’t touch ‘em’, and I’ve put ‘em down on the – on the table, kept walking. [MJH] and [SW] were following me, I went to the cage, I put the lizard in the cage and then [MJH] kept on saying – and then [MJH] was like, ‘Give me the lollies, I just wanna have some’, I’m like, ‘Just hang on a second’, and I – I got a little bit frustrated with her, I put the lizard back in the tank, I said, ‘Just go away’. But as I said, ‘Just go away’, I was walking back through the house, through the hallway to the kitchen table where the lollies was. That’s when [SW] came – went out and she went to the bathroom and she was upset. She was like – she was like – like whatever, I dunno, she was – she was upset and she’s gone into the bathroom where [SMJ] was. And that’s pretty much – that was the end of it and then me and [SMJ] had a couple more beers. … A few more hours later they went home.

With respect to the events of 16 March 2018, the applicant said (among other things):

… And I know – ‘cause when [SMJ] told me, he was speaking to me on the phone on the – on the Saturday and he said to me how I’d followed [SW] into a bedroom or something and touched her on the vagina. I said, ‘That’s fuckin’ bullshit’, because from what I remember from the – it was around the time that she was going to bed or something. She – [SMJ] was sitting on a bean bag. This I do remember, [SMJ] was sitting on a bean bag, I think he was strumming on a guitar. He was doing something. [SW] had a laptop, she was falling asleep on the couch and I thought – I was like, ‘Well, I’m sleeping on that couch’. So I’ve picked [SW] up, she still wanted her laptop, I took her to the bedroom, laid her down on the bed like I would do with my own kids. She said she wanted the charger for the laptop, I’d gone out of the room. I dunno, I can’t remember if it was in the living room or whatever, I – I – I’ve grabbed the charger, plugged it into the wall, plugged it into the laptop and I said, ‘I’ll go get your old man’. And that’s pretty much it. I remember walking out, walking into his living area and pretty much crashed out. Like, I was – we were skunk drunk.

The applicant’s submissions

The applicant’s counsel submitted that there is a significant possibility that the applicant did not commit either of the offences charged, and hence that an innocent man has been convicted. Assessing and weighing the case as a whole gives rise to that conclusion. The evidence did not establish guilt beyond reasonable doubt. A number of factors dictated that conclusion.

First, the applicant made cogent denials to SMJ during the pretext call, and to police in the record of interview. There was, so counsel submitted, no rational basis to simply dismiss the applicant’s denials. The applicant had no previous convictions for sexual offences of any kind, so much being relevant to both the credibility of his denials and to the improbability of his guilt. Neither tendency nor coincidence reasoning was open.

Secondly, SW’s evidence was pivotal to the prosecution case, yet her evidence was wanting in several respects. Thus, her evidence at the special hearing was contaminated by conversations that she had with her father, SMJ. In her VARE, relevant to charge 2, she referred to there being a door to the ‘lizard room’. She told CMP that the applicant had closed the door and held it closed. Indeed, SMJ put to the applicant in the pretext call that he had shut the door to that room. Very significantly, however, having spoken to her father — he having mentioned a curtain — SW changed her version of events, and gave evidence at the special hearing that the applicant used a curtain to stop his daughter, MJH, from entering the room. More significant still, there was neither a door nor a curtain at the entrance to the lizard room.

Making SW’s evidence on charge 2 all the more improbable is the fact that, at the time that the applicant and SW were in the lizard room, there were five people in the house, three of whom — SMJ and the applicant’s two children — were up and moving about. Not only was it easy to see and hear anything that was happening in ‘the lizard room’ from the kitchen, since there was no door affixed, anybody in the house could have entered that room at any time. Indeed, MJH was present and watching for most of the time the applicant and SW were in the lizard room, in circumstances in which the applicant knew of her presence. And if SMJ was in the kitchen when the offending allegedly occurred, given that the kitchen was only two or three metres from the lizard room, he would have been in a position to hear all that was happening. Thus, although the penetration alleged was said to have been brief, the lead-up alleged by SW involving a lollipop would have taken some time. Having regard to MJH’s unchallenged evidence, it was utterly implausible that the applicant could have committed the offending in the way alleged. SW’s description of the applicant’s use of a door and then a curtain, in circumstances where there was neither a door nor a curtain, adds to the improbability of the offending having occurred in the manner alleged.

As to the first charge, SMJ was awake and in the lounge room when the applicant took SW into SMJ’s bedroom. It was submitted that the applicant could not have assumed that SMJ would not enter his own bedroom at any moment. Not only is it implausible that the applicant could have committed the offending in the way alleged, but SW’s initial complaint was made in the context of her having made the improbable allegation that was the basis of charge 2, and being asked if anything else had happened previously. Further, in her VARE, SW said that the applicant was already in the bedroom when she entered, but in the special hearing she said that the applicant had picked her up and carried her into that bedroom.

The respondent’s submissions

The respondent’s counsel submitted that it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt.

Counsel for the respondent submitted that the eight-year-old complainant gave evidence of both charges in a clear and unambiguous manner. Her father, SMJ, confirmed the circumstances surrounding the events of charge 1 (including that the applicant had visited their home on 16 March 2018, drank alcohol and fell through a laundry window).

As to charge 2, it was submitted that SMJ gave evidence of SW entering the bathroom and making an immediate complaint of what had occurred in the lizard room. Moreover, MJH confirmed in her evidence that SW and the applicant were in the lizard room, and that the applicant had told her to leave so that SW and the applicant were alone in the lizard room. MJH observed the applicant give SW a lollipop in the lizard room, and observed SW to be on her knees at one point.[15] She also said that SW left the lizard room and went straight to the bathroom. SW also made complaints to SMJ and CMP.
[15]See [26]–[27] above.

The respondent’s counsel contended that SW’s evidence that there had been a door to the lizard room was merely a ‘minor aspect’. Counsel submitted that the suggestion that SW’s evidence had been contaminated with respect to whether there was a door to the lizard room should be rejected. Although the evidence did raise the possibility that SW overheard a conversation regarding whether the lizard room had a door, SW ‘was not instructed to change her evidence’. At the special hearing, SW corrected the answer she had given in her VARE and stated the lizard room did not have a door but had a curtain. In cross-examination, she said that she had erroneously told her father in the car there had been a door, and had not mentioned a curtain to her grandmother. She said that her memory had been jogged regarding the presence of a curtain when asked by her father if there had been a curtain as opposed to a door. SMJ confirmed he had spoken about the presence of a door to the lizard room after SW had participated in the VARE. After the VARE had been conducted, the applicant’s wife (HT) contacted SMJ and advised that the lizard room did not have a door. He discussed this telephone call with his mother who was at the table in the presence of SW. This inconsistency was not so compelling, counsel argued, to lead to rejection of SW’s evidence of the offences.

Counsel submitted that ‘peripheral matters’, such as the existence of a door or curtain to the lizard room, do not affect SW’s reliability or credibility. The jury could comfortably reject the applicant’s denials in the record of interview and pretext call. Parts of the applicant’s account, counsel submitted, supported much of SW’s evidence. For example, after being in the lizard room, SW was upset and went to her father in the bathroom, who told her to ‘go away’. And despite his drunkenness, the applicant recalled carrying SW to the bedroom, placing her on the bed and setting up the charger. The applicant therefore supported the circumstances in which SW said the applicant had offended against her. This was not a case where the applicant asserted that he had never been alone with the complainant or had never had the opportunity to be alone with her.

The respondent’s counsel also drew attention to the fact that, in relation to the circumstances of charge 2, the applicant stated that he was drunk. His reliability was therefore in issue. Further, his account of who distributed the lollies, and when that occurred, differed from that of SW and MJH. And significantly, his account of what occurred in the lizard room was inconsistent with his daughter’s account. The applicant asserted that SW and MJH followed him to the lizard room where he intended to return the lizard to the cage. Whilst at the cage, both children nagged him for lollies and they then left together to obtain them. Neither SW nor his daughter support that account. MJH was told repeatedly to leave the lizard room and had positioned herself in a seating position where she could surreptitiously observe the applicant and SW. On two occasions, however, she left her post. The complainant’s account was consistent with MJH’s account, particularly as it was the applicant who repeatedly directed MJH to leave, go away or get out.

Counsel submitted that good character cannot be determinative of a jury’s assessment of an accused’s denials or guilt.[16] Furthermore, the brazenness and high risk involved in committing an offence in a small home where others are present does not render SW’s account implausible.[17] As was made clear in Pell,[18] the function of a 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 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’.[19] The respondent’s counsel submitted that, upon the whole of the evidence, it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt.
[16]Harmer (a pseudonym) v The Queen [2020] VSCA 310, [54] (Priest JA).
[17]Ibid [55].
[18]Pell v The Queen (2020) 268 CLR 123 (‘Pell’).
[19]Ibid 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

Discussion

Consistently with M, the question this Court must ask itself is whether we think that it was open to the jury — upon the whole of the evidence — to be satisfied beyond reasonable doubt that the applicant was guilty.[20] As the majority also observed:[21]

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

[20]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’).

[21]Ibid 494−5 (citations omitted).

More recently, in Pell, the High Court once more endorsed the approach laid down in M, and said:[22]

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,[23] 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.

[22]Pell, 145 [39] (citation as in original).

[23][CPA], s 276(1)(a).

As is clear from Pell, in assessing whether the jury’s verdicts in this case are unreasonable or cannot be supported by the evidence, the Court must assume that the jury assessed SW’s evidence to be credible and reliable. The Court’s task is to examine the whole of the evidence to see whether — notwithstanding the jury’s assessment that the SW’s evidence 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. That examination must not 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 High Court concluded that ‘the compounding improbabilities caused by [other] unchallenged evidence … nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt’.[24]
[24]Pell, 164 [119]. See also 166 [127].

Turning first to the verdict on the second charge, we regard the circumstances of the offending alleged by SW to be highly improbable.

The activity alleged under cover of charge 2 was not a fleeting touch. It was an asserted activity of a very different order of seriousness, allegedly committed in circumstances in which adults were close by and children were active. Moreover, the act of penetration allegedly occurred in a relatively exposed area of the applicant’s premises, where activities within that area were very likely to be seen and heard by others in the vicinity. And the undisputed evidence is that others — in particular, MJH — were in the near vicinity.

Most significantly, in what can only have been an attempt to explain why MJH did not observe the applicant penetrating SW’s mouth with his penis, SW initially claimed that the applicant shut a door to the lizard room behind him, and held it shut to prevent MJH from entering and observing the applicant’s activities. That was the version that SW gave to her grandmother, and was the version that her father put to the applicant in the pretext call.

SW abandoned that version, however, after the applicant’s partner, HT, telephoned SMJ, and, perhaps naively, pointed out that there was no door to the lizard room that the applicant could have shut behind him in order to facilitate the sexual offending alleged. In an apparent response to that inconvenient truth, by the time SW came to give evidence at the special hearing, she had settled upon a version in which there was a curtain to the room, which the applicant pulled closed in order to block MJH’s observations of his sexual penetration of SW. The evidence points to SMJ as the source of the suggestion that there was a curtain.

To our minds, the circumstances in which SW came to change her version are somewhat disturbing. At the very least, we consider the circumstances suggest contamination (if not concoction or collusion). In evidence that we find difficult to accept, SW claimed that her memory was simply ‘jogged’ when her father asked her, ‘Are you sure it wasn’t a curtain?’.[25] Allied to that, SW’s father was, as we have indicated, keen to volunteer that he had ‘never coached [her] what she had to say’, and was eager to declare that he would ‘take a polygraph test if [he had] to do that’.[26] What is clear, however, is that by the time SW came to give evidence at the special hearing, she was surprisingly well-prepared for a child of her tender years to deal with any proposed inconsistencies in her evidence advanced by the applicant’s counsel. Thus, at one stage she boldly confronted cross-examining counsel with, ‘Are you talking about the curtains coming back, boom?’ — thereby delivering what she apparently considered to be a verbal coup de grâce to counsel’s probing — and, in effect, confidently asserted that she had freed her evidence from inconsistency.[27]
[25]See [21] above.
[26]See [22] and [36] above.
[27]See [22] above.

Putting to one side the change in SW’s account, however, the thing that both versions have in common — whether it be the imaginary door or the non-existent curtain — is that they are calculated to explain what would otherwise be wholly implausible; that is, how the applicant could have offended against SW in the manner alleged without being observed by MJH (or, for that matter, anyone else). In our view, the fact that there was neither a door nor a curtain to the lizard room — a matter that the respondent did not dispute — renders the circumstances of the alleged offending to be highly improbable. The existence of a door or a curtain is inextricably woven into the fabric of SW’s account, and is not, as the respondent’s counsel would have it, simply a ‘minor’ or ‘peripheral’ detail. Indeed, the closure of the door, or the shutting of the curtain, to block MJH’s observation and entry, was an integral part of the mechanism alleged by SW by which the applicant was capable of accomplishing his criminal purpose.

In concluding that the circumstances of the alleged offending are highly improbable, we have not ignored that experience has shown that men of otherwise good character on occasion have been known to perpetrate sexual offences opportunistically, in circumstances posing a high risk of detection.[28] With that in mind, the respondent’s counsel contended that the undeniable fact that there were people in the vicinity at the crucial time did not necessarily render SW’s version of events implausible. Taken in isolation, so much is true. Axiomatically, however, each case must turn on its own facts. And in this case, the evidence independent of SW established that, if the applicant had offended against her in the way that SW said that he did, there was not merely a high risk of discovery, but detection was virtually inevitable.
[28]Examples are provided by cases such as: Morris v The Queen [2016] VSCA 331; Rapson v The Queen (2014) 45 VR 103; and Hughes v The Queen (2017) 263 CLR 338.

Adding to the improbability of the prosecution’s case on charge 2, and presenting a formidable obstacle to its acceptance, is the evidence of MJH, which the prosecution made no attempt to challenge.[29] The gist of her evidence was that the applicant had taken the lizard out of its enclosure to show it to the children in the kitchen, but decided to return it when the lizard became scared due to the noise. When the applicant was then in the lizard room with SW, MJH was in the doorway watching, crouching so that the lizard could not see her (thereby avoiding adding to its stress). MJH said the light was on — SW said it was off — and she could see her father kneeling down close to the lizard. He was ‘half kneeling’, and SW was ‘on her knees a little bit’, facing towards the lizard tank. MJH said that SW was looking at the applicant when he spoke to her about the lizard changing colours and when he explained to her how the lizard sometimes sheds in winter. MJH said that she was there the whole time, and did not hear the applicant tell SW to close her eyes, or see the applicant pull his pants down or up, or put anything in SW’s mouth. According to MJH, SW whinged about a lollipop and ran into the bathroom to her father and started crying. SW stopped crying, however, after MJH gave her a lollipop and a Flake, and they went off to play together.
[29]See, for example, Evidence Act 2008, s 38.

There was, in our view, no proper basis upon which the jury could have rejected MJH’s evidence. None was suggested by the respondent’s counsel. Instead, the respondent’s counsel attempted to advance a basis upon which SW’s and MJH’s evidence could be reconciled, and went so far as to suggest that MJH’s evidence actually provided support for SW’s evidence. Thus, as we have mentioned,[30] the respondent’s counsel submitted that MJH confirmed in her evidence that the applicant and complainant were in the lizard room, the applicant had told her to leave and that the complainant and applicant were alone in the lizard room. The respondent’s counsel also submitted that MJH observed the applicant give the complainant a lollipop in the lizard room, observed the complainant to be on her knees at one point — we have earlier expressed our view that this submission is apt to be misleading[31] — and saw the complainant leave the lizard room and go straight to the bathroom. The respondent’s counsel also submitted in writing:[32]

The applicant’s account of when and who distributed the lollies differed to that of the complainant and [MJH]. Significantly, the applicant’s account of what occurred in the lizard room was inconsistent with the account of [MJH]. The applicant asserted the complainant and his daughter followed him to the lizard room where he intended to return the lizard to the cage. Whilst at the cage, both children nagged him for lollies and they then left together to obtain lollies. Neither the complainant or [sic] [MJH] support this account. [MJH] was repeatedly told to leave the lizard room and had positioned herself in a seating position where she could surreptitiously observe the applicant and complainant however on two occasions she left her post. The complainant’s account was consistent with [MJH’s] account, particularly as it was the applicant who repeatedly directed [MJH] to leave, go away or get out.

[30]See [71] above.

[31]See [27] above.

[32]Counsel who signed the respondent’s written case was not counsel who appeared upon the hearing in this Court.

These submissions are not persuasive. MJH’s evidence was that she left the doorway to the lizard room on two occasions, first to get food for the lizard and then to obtain lollies. Otherwise, as the respondent’s counsel seems to have accepted, she ‘had positioned herself in a seating position where she could surreptitiously observe the applicant and complainant’. That being so, the respondent’s case must be that the applicant perpetrated the act of sexual penetration either when his daughter went to get lizard food, or when she went to get lollies, in the certain knowledge that she would very soon be returning. We consider that hypothesis to be extremely implausible.

It is true that MJH agreed that her father told her to go away — that, she said, was to avoid adding to the lizard’s stress — but MJH’s evidence was that she remained and observed what was occurring. And what she observed was wholly inconsistent with SW’s version of events. Significantly, the respondent’s counsel made no attempt to try and reconcile MJH’s evidence with SW’s account that the applicant blocked MJH’s view with either a door or a curtain. Quite clearly, that is because the two versions on that aspect are wholly incapable of being reconciled.

As we understood it, the respondent’s counsel also relied on a ‘disclosure’ made by SW to her father in the bathroom — that is a term best avoided[33] — to support SW’s credibility. It is significant, however, that when SW spoke to him, SMJ did not understand that SW was making a complaint of sexual impropriety — he apparently only understood it to be such after further conversation with his daughter in the car — and MJH’s evidence was that SW was crying and whinging to her father about not getting a lollipop. According to MJH, SW stopped crying once MJH gave her a lollipop and a Flake. SW was then happy, and the two of them went off and played together. It is thus far from clear that SW’s initial grievance communicated to her father in the bathroom related to any sexual activity.
[33]See Nenna (a pseudonym) v The Queen [2021] VSCA 183, [103]–[105].

In summary, not only was SW’s account highly improbable, but it was inconsistent in important respects with other unchallenged evidence which the jury simply could not ignore. For these reasons, the jury should have entertained a reasonable doubt about the applicant’s guilt on the second charge. The conviction on that charge should not be permitted to stand.

We are also of the view that the conviction on the first charge must be set aside.

In our view — and making due allowance for her age — SW was an unsatisfactory witness, whose evidence lacked both credibility and reliability. Her evidence about the existence of a door or a curtain to the lizard room was objectively untrue — the prosecution did not dispute the absence of a door or a curtain — and her evidence changing her initial account on that critical aspect almost certainly was tainted by her father’s intervention. Furthermore, her evidence could not be reconciled with MJH’s account, which was left completely unchallenged by the prosecution. Hence, notwithstanding that we must assume that the jury assessed SW’s evidence to be credible and reliable, our own independent assessment of the whole of the evidence leads us to conclude that SW’s evidence lacks probative force. Based on her evidence on charge 2, viewed against the backdrop of the other objective evidence, we have a reasonable doubt about SW’s credibility and reliability generally. We take that doubt into account when considering her evidence on the first charge. In our opinion, nothing in the Jury Directions Act 2015 prevents us from doing so.[34]
[34]See Jury Directions Act 2015, ss 4A, 44F and 44G. See also Mathieson v The Queen [2021] VSCA 102, [54] (Priest, Kyrou and T Forrest JJA). Cf Pell v The Queen [2019] VSCA 186, [1098] (Weinberg JA).

The evidence reveals that, although the events founding the first charge allegedly occurred on 16 March 2018, no complaint was made until 29 September 2018, when SW spoke to her father in the car having left the applicant’s house. Even acknowledging SW’s evidence that the applicant told her not to say anything, and taking into account that experience shows that delayed complaints in cases of sexual offending against children are not rare, given SW’s demonstrated self-assured and forthright manner, an earlier complaint might well have been expected had the activity eventually complained of occurred.

Also problematic is SW’s account of the alleged offending. In her VARE, SW claimed that the applicant went with her into the bedroom she shared with her father to get a charger for a computer. She claimed that the applicant then ‘pulled down [her] pants a little bit’ and touched her on her ‘rude part’ (or ‘vajayjay’) used for ‘peeing’. SW thought that the applicant was not touching skin but ‘was touching undies’. She said nothing about being carried by the applicant. And, unlike her claims relevant to the second charge, she did not make an immediate complaint to her father who was nearby.[35]
[35]See [17]–[19] above.

The applicant’s account was very different to SW’s. He told police that SW was falling asleep on the couch, where he was to sleep that night. As a result, he picked her up and took her into the bedroom and laid her on the bed (as he would do with his own children). He then left the room to get a charger for the computer, and said, ‘I’ll go get your old man’, who was close by, strumming a guitar on a beanbag.[36] Importantly, the applicant’s account was supported by CMP. She gave evidence that when SW was telling her about the alleged touching at SMJ’s place, SW said that the applicant carried her into the room.[37]
[36]See [55] and [60] above.
[37]See [42] above.

Given the improbability of the applicant having sexually assaulted SW when her father was close by, and, despite her outspoken manner, SW’s failure to make an immediate complaint; and given the fact that the applicant’s version of events was supported by CMP, whereas SW’s version was unsupported; and taking into account our doubt about SW’s overall credibility and reliability; we consider that, properly applying the criminal burden and standard of proof, it was not open to the jury to reject the applicant’s version and thereby convict him of the first charge.

Conclusion

For the foregoing reasons, leave to appeal against conviction should be granted and the appeal allowed. We would set aside the convictions on both charges, and enter a judgment of acquittal on each.

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[2021] VSCA 312

16 November 2021