Henshaw (a pseudonym) v The Queen
[2021] VSCA 356
•17 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0150
| GORDON HENSHAW (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]These reasons have been anonymised to avoid the risk of identifying the alleged victim of sexual offending.
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| JUDGES: | PRIEST, KYROU and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 November 2021 |
| DATE OF JUDGMENT: | 17 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 356 |
| JUDGMENT APPEALED FROM: | DPP v Henshaw (a pseudonym) [2021] VCC 1578 (Judge M Sexton) (Conviction) |
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CRIMINAL LAW – Appeal – Conviction – Rape – Trial by judge alone – Alleged digital-anal penetration in the course of physical struggle between father and son – Defence case of accident – Whether verdict unreasonable or cannot be supported having regard to the evidence – Whether open to judge to find penetration – Whether open to find penetration intentional – Appeal allowed – Conviction set aside – Verdict of acquittal entered – M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123, Filippou v The Queen (2015) 256 CLR 47 considered.
CRIMINAL LAW – Appeal – Conviction – Rape – Witness statement admitted as agreed fact – Statement containing hearsay representations supporting defence case – Whether open to judge to find representations not made – Substantial miscarriage of justice by reason of judge’s findings concerning agreed facts.
CRIMINAL LAW – Appeal – Conviction – Rape – Complainant’s evidence of at least 75 per cent certainty that penetration occurred – Judge not bound to have reasonable doubt about penetration on that evidence alone – R v Cavkic (2005) 12 VR 136 considered.
CRIMINAL LAW – Appeal – Conviction – Rape – Eyewitness hearsay representation that penetration accidental – Representation not admissible as lay opinion – Evidence Act 2008 s 78, R v Whyte [2006] NSWCCA 75, Petch v R (2020) 103 NSWLR 1 considered.
CRIMINAL LAW – Appeal – Conviction – Rape – Prior inconsistent statements – Whether judge erred in use of.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr D A Dann QC with Mr D Cronin | Emma Turnbull Lawyers |
| For the Respondent: | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KYROU JA:
Introduction
An indictment filed in the County Court charged the applicant with the digital-anal rape[2] (charge 1), and, in the alternative, sexual assault[3] (charge 2), of his son, ‘JH’.
[2]Crimes Act 1958, s 38. The maximum sentence is 25 years’ imprisonment.
[3]Crimes Act 1958, s 40. The maximum sentence is 10 years’ imprisonment.
The alleged offending occurred in the course of a physical struggle between the applicant and his son, which took place in the family home on 28 June 2017.
A trial of the charges proceeded before a judge alone[4] between 19 and 22 April 2021, and, on 28 May 2021, the judge convicted the applicant of rape.[5]
[4]See Criminal Procedure Act 2009, s 420D (now repealed).
[5]On 21 October 2021, the judge sentenced the applicant to 20 months’ imprisonment, with a non-parole period of 10 months.
On 21 October 2021, the applicant filed a notice seeking leave to appeal against his conviction, relying on the following grounds:
1.The Learned Trial Judge erred in her approach to the evidence that had [been] agreed to be read in from the statement of Pamela Copperwaite.
2.The Learned Trial Judge erred in disregarding the Complainant’s evidence that he would probably lean to an over 75 per cent level of certainty that penetration occurred.
3.The Learned Trial Judge erred in her consideration of the prior inconsistent statements of the Complainant and the Complainant’s mother.
4.The Learned Trial Judge erred in her approach to the evidence from the Complainant that he did not know whether the sexual penetration that he was alleging had occurred accidentally.
5.The Learned Trial Judge erred in the approach to the evidence of the statement by the Complainant’s mother that ‘it was an accident’.
6.The Learned Trial Judge erred in her approach to the question of who was the original aggressor.
7.The Learned Trial Judge’s consideration of the Applicant’s account in his Record of Interview was infected by the errors [the] subject of Grounds 1, 3 and 5.
8.The verdict of the Learned Trial Judge was unsafe and unsatisfactory.
At the conclusion of the hearing in this Court on 29 November 2021, the Court was of the view that the first ground (at least) should succeed — and that the applicant’s conviction for rape should be set aside — but no concluded position had been reached concerning the necessary consequential orders. As a result, the Court admitted the applicant to bail, pending final determination of his appeal.
In our opinion, grounds 1, 3 (in part), 6, 7 (in part) and 8 should succeed. We would thus grant leave to appeal; allow the appeal; set aside the conviction for rape; and order a judgment of acquittal. Our reasons follow.
The evidence at trial
So as to understand the issues raised in this application, it is necessary to summarise the evidence in the trial in moderate detail.
The complainant’s evidence
JH gave evidence that, on 28 June 2017, he was living with his father and mother, ‘KAD’, in the family home in a north-eastern Melbourne suburb. He was in his first year at university and was studying in his room when, at ‘around dinner time’, he heard his father and mother arguing about the changing of a television channel. As the argument continued, JH decided to leave his room. He tried to ‘convince them this was quite silly’. His father then pushed him, and he pushed back.
Straight after the ‘pushing and shoving’, ‘it escalated for [scil, far?] more on his side and more just pushing and shoving, so you know kicking and punching and trying to tackle [JH] into a wall’. At one point, JH said, the applicant ‘grabbed a broom and started trying to hit [him] over the head with [it] multiple times’. JH managed to take away the broom, and manoeuvre his father into his father’s bedroom. He held the door shut on his father ‘hoping that he would cool down’. JH said that he held the door shut for more than half an hour — during which time ‘some obscenities were being exchanged’ — until he had to use the bathroom.
After JH let the door go, the applicant ‘just kind of ran out straight away trying to tackle [him] or you know get his hands on [him] in some shape or form, and tried to get back to the broom, tried to find the broom again and found it, and tried it and then tried to hit [him] with the broom again’. JH thought ‘he succeeded a couple of times, but [he] was able to unscath [scil, escape?], you know, get away from that okay, yeah’. When his father came out of his room he was in ‘almost a bull dog state … just kind of you know shaking, and he starts to grind his teeth, spit comes out’. His father then tried again to attack him with the broom, so JH went into the kitchen, grabbed a knife and held it to his wrist.
JH put the knife down after his mother spoke to him, telling him ‘it was all okay, and all that sort of stuff’. He then walked away and his father approached him from behind. JH’s evidence continued:
[T]hen he grabbed me, it was like he was trying to pick me up action [sic] almost, like from my legs. I’m not quite sure what he was trying to do, um, but a couple of weeks prior he tried to I suppose yeah, tackle me at the laundry door so I thought maybe it was going to be something similar to that so I sort of, like, saw it coming and um, like froze a little bit, and he wasn’t able to pick me up, but it was sort of like, bending down, he was trying to pick me up from my legs and my lower regions. That is what the action of his was, yeah. Um, and I kept trying to push him off and then the more I tried to push him off, my mum tried to hold my arms, yeah.
Whilst his mother was holding his arms trying to pull him away, JH said, his father kept trying to pick him up. He said:
I do remember him, like, grabbing onto my, I suppose, behind, um, to try and help with the picking up or whatever he was doing, and then, um, yeah, feeling a bit vulnerable, as I was still getting, like, pulled to try — yeah, pull away from him at that time, and then, yeah, I do remember — and again, I’m not gonna remember how many fingers it was or exactly how it played out, but yeah, I do remember him entering him [sic] from, like, my — from behind, and yeah, a pain that I haven’t experienced since. … I suppose, yeah, with his — with his fingers, um, yeah, it, um, went from grabbing my, um — my bum to try and pick me up to, um, travelling to my — my anus. I’m not sure exactly how — how long or how — he was in there, because at the time it feels like forever, or how far it was, but yeah, it definitely felt like a long way and felt like forever, but in reality it probably wasn’t as long as it feels. … I suppose it is a – it’s a hard thing to describe, but it was just, yeah, just the — yeah, I just felt like his, yeah, yeah, finger or fingers — I can’t, yeah, I can’t remember exactly how — how many it was, but yeah, it’s, like, yeah, where they travelled, um, a fair way up my bum, I suppose. Yeah, I don’t know exactly the right way to — to say it, but yeah, it was a very different sensation than I’ve ever experienced. … Um, yeah, the second I entered [sic], and the — mm, you know, a long time, for — for a while afterwards, yeah, it was a — I remember, yeah, yeah, it was — yeah, it was very, um — a lot of pain. … I suppose just because of the amount of the pain it was and the sensation it was, it, yeah, it just felt like forever, but in reality it probably — it wouldn’t have been longer than, um, you know, five to 10 seconds, but it — yeah, like, in the moment, it felt — it felt, like, long because of the pain.
At the time these events occurred, JH said, he was wearing tracksuit pants and underpants. He said that he had previously said that his father’s hands were outside his underpants and tracksuit pants, but he ‘just can’t remember’, because ‘maybe [his] brain’s blocked it’.
JH said he and his father became separated, and
once some separation had occurred, I remember explaining what I felt and what I know just happened, and then I remember at the time him saying that he was, and he didn’t mean it and that it slipped and yeah, just things along those lines. I remember pretty quick the scenario went from yeah, just him saying that yeah, it slipped, or he didn’t mean it, but yeah the physical alteration [scil, altercation] pretty much stopped once that incident occurred.
Later, JH said, he left the house, went to the park, telephoned his girlfriend and told her what had happened. He also spoke to his grandparents, and told them what had occurred. His mother then came to the park to get him to go back home.
The next night he spoke to his father. JH’s evidence continued:
Like, so obviously it was at stages a little bit, to begin with, and at the end of the altercation a little bit calmer, and in the middle got aggressive again. But yeah I just explained what happened and that it was definitely not on and um, yeah, he was just telling me that he did it et cetera and that he didn’t, like it slipped and he had all these different excuses but um, yeah, I was telling him it wasn’t just that incident. That it was other incidents. I didn’t want to live in the same house. He tried to convince me that he could change …
JH also gave evidence that he felt pain in his legs ‘multiple days’. He could not go to the toilet ‘for a couple of days’ and was sore in his ‘bum region’ for ‘two to three days’. He checked and there was blood on his toilet tissue. He took a photograph of it (Exhibit A).
Counsel for the applicant at trial cross-examined JH on whether there had been actual penetration. The cross-examination included the following:[6]
[6]Emphasis added to this and following passages.
And effectively, what I want to ask you is this, that when you felt pressure on your anus, am I right that firstly, or at this time when you feel the pressure, you react by saying something verbally?---Yeah, sure, yep.
And a second reaction that takes is that you push at your father?---Yes, yes, so it was like yes, I pushed him away, yeah.
And you say something to him like, ‘your finger’s gone up my bum’, or at my bum, or something like that?---Yes, correct, yeah.
And as soon as those things happen, as soon as you feel pressure and you yell out to your father and push him, these things are all sort of happening within micro seconds, correct?---M’hmm, yeah.
As soon as you say that, your father stops, correct?---Yeah, I can’t, because again, I can’t pinpoint whether the actual second or the moment of, but I do remember there being separation, you know, in the time afterwards, yeah.
And look, I understand it’s hard going back in time and putting, you know, seconds on this, and I’m not asking you to put a clock on it, but what you observed was that almost immediately of you saying something, recoiling and pushing at your father, is that he stopped, correct?---Yeah, I wouldn’t say it lasted longer than, you know, five seconds longer than me saying it. It’s hard to pinpoint seconds, as you are saying.
And I guess you say that people are making a lot of noise and you needed to convey the information to your father, correct?---Correct.
Do you think that when I talked about that physical reaction of moving away, do you think that you might have been able to move away before the finger actually went into your anus?---As in like, what we were talking about earlier, was I strong enough to do it, or did I, sorry I just can’t.
No, no, and that’s my fault, I’ll see if I can explain it better. The question I asked you before was, in fact let’s not worry about what I asked you before. I’m talking about movement of the hips. When you felt pressure on your anus, and it registered what was happening, did you move your hips away, that is, to move yourself away from where you could feel pressure coming from?---Um, yeah, yeah, like I just said to you, it’s, and I think you did too, it’s really hard to pinpoint, you know, the seconds surrounding but, I don’t feel like I could give a good enough answer to I suppose in the court. It was too long ago, and I don’t think I’d get the seconds, the time frame right, to be honest with you.
Yes?---Like was with my hips or my hands, like I can’t give a good enough answer.
All right. Do you think though that maybe as you’ve moved yourself away, you felt pressure on your anus, but you managed to move your body away, such that the finger didn’t actually go into your anus? There was pressure on the outside, and perhaps a scratch to the outside of the anus, but it didn’t go in? Do you follow the distinction I’m making there?---I do feel like it definitely, but again, it’s weird to talk about, I do feel like it definitely went in.
All right, you feel like it went in, but it’s a foreign feeling, and maybe it didn’t, correct?---I, I probably don’t want to say it probably didn’t though, to be honest.
Well, probably didn’t, what about the possibility that it didn’t? It might not have gone in, but it’s just that it was a foreign feeling, and it shocked you, and thinking back on it, you can’t be sure whether it actually it [sic] did go in or not, correct?---I, I still probably wouldn’t agree that it probably wouldn’t have. The sensation was too painful for it to just scrape the outside. It did feel like something was, like I suppose inside. It was, yeah, a very frightening feeling.
Yes. Well, it felt like it is. But do you think it’s possible that maybe it didn’t?---I suppose it’s impossible to take a time machine back. But, like, I think before you told me to put like, percentages or 90 to 100 per cent, ‘cause, you know, it’s too long ago to remember 100 per cent, but I’d probably lean towards above 75 per cent if I was going to say something. But, yeah, I definitely did not just feel like a scratching — ‘cause I suppose if you’re saying that it almost feels if he was like still grabbing my bum and doing — accidentally touching. I still feel like it was — it did go in. I suppose I don’t know the feelings enough to say whether it did or not but just — yeah, the feeling was — it just feel too intense of a feeling just to be scratching the outside.
Other cross-examination was concerned with whether JH had put his father in a headlock, an issue that was very important in the trial. Part of that cross-examination relied on the contents of a ‘pretext call’, which occurred on 12 February 2019 — more than a year and a half after the events of 28 June 2017 — when police recorded a telephone conversation between JH and the applicant. Although, in a pre-trial ruling, the judge ruled on the admissibility of a passage of the pretext call — assisted by a transcript that had been made of it[7] — neither the recording nor transcript of the pretext call were tendered on the trial. Notwithstanding that this was so, counsel for the applicant cross-examined JH on the issue of whether he had put his father in a headlock by reference to the transcript of the pretext call. In the course of that cross-examination, JH admitted that, given what he had said in the pretext call, he ‘must have’ had the applicant in a headlock at some point during their struggle:
[7]Ruling No 1: Purported admission in the pre-text call (19 April 2021).
All right, well take a moment to read it [the transcript of the pretext conversation] because I was asking you questions then, so if you have a read of it, that one page, then I’ll ask you some questions in a moment?---Yep, whenever you’re ready, let’s go.
Now, what you say there, as I understand it, at the top is you’re describing that you’re standing up and, you know, if you lock out your legs, you won’t fall over?---Yes, so I think I explained earlier that when I was going to crouch down, or like stand up, like I was trying to brace myself, so I wouldn’t fall down, so I guess that’s consistent, yeah.
Then you go on to describe further down, ‘as you had hold of the back of my thigh, this is a year and a half ago, I’m not going to, you know, I don’t know what your mind was thinking a year and a half ago, either you were struggling because I was had [sic] you in a headlock, because I was trying to get you off my leg, but out of, I still don’t know if it was out of desperation as you were trying to win the fight, or whatever it was’. Is Your Honour happy for me to keep reading?
HER HONOUR: Well I think that’s probably the passage that you want to concentrate on.
[DEFENCE COUNSEL]: Yes?---Sure.
So [JH], the questions that I asked you about this before were that, as I understood your evidence, that you don’t dispute that you said this, is that right?---Well yeah, like I’ve said multiple times, if whenever is closest to the event, we’ll trust my brain at that stage, sure.
And because this was closer to the event, what we can say, or what you will confirm is that you did have your father in a headlock, correct?---Yes, sure, I would like to say, you know if we continue it to be in self-defence. It wasn’t an instigated attack.
Well, your position now is that you did have him in a headlock, but what you’d like to say, is that it was in self-defence?---Um, I suppose it kind of says it in the writing, if it’s read.
Whereabouts?---Okay sure, I suppose where it says um, ‘whether you were struggling because I had you in a headlock, because I was trying to get you off my leg’, so I feel it kind of like says it in that sentence. Um, yeah, I’m not sure if you want me to clarify that any further, but it says it in that sentence.
So you say, look I had him in a headlock because that’s how I was trying to get him off my leg?---I suppose that’s how it says it in the writing, yeah.
Well, the next point is this, if you had him in a headlock, was he facing you, or facing away from, because it seems to me that it would be hard to have someone in a headlock if they are facing you?---Like I’ve said multiple times, I cannot give, like I said, I hardly remember this conversation of two years ago, so I’m not going to be able to pinpoint something 100 per cent, but my recollection is he was facing me, yeah.
All right?---Because you can still give a headlock, like if I did, I must have mistaken, you can still give it to someone facing your chest.
Yes. Well, so you think maybe you might have been giving him a headlock while he was facing you?---Well, I’m just going off what my best recollection is.
Well, do you have a recollection of it or are you just guessing?---Well, my best recollection is that he was facing my chest, so that’s all I can remember.
All right. What about the headlock though; do you remember that or not?---I – I do not remember that, no. But, obviously — obviously, it must have happened, so yeah, that’s to the best of my ability.
Do you accept that your memory of things might be a little bit different to what actually took place now that the headlock part’s been show to you?---I’m not going to say it’s way different. Like, and I think, we’ve covered multiple times that I would have – like, with that happening I must have, you know, done anything — like, I’m sure you must be the same to do anything you can if someone’s trying to, you know, like pick you up and throw you, so, I’m sure that was just one of the instinctive things I must have done to try and get him off me, so (indistinct).
Just pause on that. Your evidence is that you would do anything you could if someone was — I mean, if someone’s grabbed you and they’re holding onto you, you’d do whatever you can to get them off. You’re saying that maybe I grabbed him in a headlock during that time out of desperation?---Yes, possibly. Possibly, I did. As I said — here, like it says I must have. But I think — I think you’ve talked about it multiple times. It happened so quickly it’s hard to pinpoint the exact moment and what happened at what point.
If you grabbed him around the neck and squeezed him in a headlock, you’re saying that if I did that it was an accident or something that happened so quickly that I didn’t mean to - - -?---I wouldn’t say I — I wouldn’t say it was a squeeze. Again, I think I’ve said this before, I don’t feel like I’ve got a violent intent. I wouldn’t have gone to try and choke him out. But if it — yeah, if I did it would have been to get him off me as I think it says in that sentence, he was grabbing me around my legs and picking me up before I did that. So if — obviously, it says I did. If I did it would have been to get him off my legs as it said in the phone call transcript.
Yes?---Yes.
[JH], when you gave evidence before that you never had him in a headlock, you accept that that sworn evidence was wrong now?---Yeah, as I said, we’ll go off what is the closest to the date. But that’s — that’s all I can — yeah, I honestly can’t remember.
Had defence counsel used the transcript of the pretext call in an unfair manner, or in a way that was potentially misleading, no doubt the trial judge would have intervened. In any event, the prosecutor returned to the issue of the headlock, and what JH had said about it in the course of pretext conversation, in re-examination. As emerges from the following passage, the prosecutor — once more using the transcript — first, drew JH’s attention to the fact that there was more than one mention of a headlock in the pretext conversation; and, secondly, the prosecutor having done so, JH clearly appeared to accept that he had placed his father in a headlock, albeit he claimed not to remember ‘that part’ involving the headlock ‘too well’:
[JH], you were asked some questions about the reference to a headlock in this [pretext] telephone conversation with your father?---Yeah.
I believe in 2019. There was another reference to headlock during that conversation and I just want to read it out to you?---Sure.
You say, ‘Well, can I just, it’s like you are trying to wrestle me to the ground if that makes any sense,’ and your father says, ‘Yeah, I, I did. Yeah, I tried to wrestle you to the ground and you tried to get me in a headlock, too. Not trying to hurt me, basically.’ And then you say, ‘To get you off — yes? ‘Cause look, I’m not trying to like confess myself as Mr Perfect but if I really was going to put you in a headlock, I would like, I could put you to sleep.’ Does that assist with you, with your memory of what type of headlock you had your father in on this night or not?---Yeah, I’ll be honest, I really don’t remember. I felt that night is a bit hazy but like, yeah, like, listening to that, like, I’m being, like, you know, I’m, you know, 6’4”, you know, nearly 100 kilos, if I wanted to do, I, I could have.
I, I, I’ve never wanted to, I never have in my life, I, I, yeah, like, ah yeah. Like, I don’t know if that’s how, a good, right answer. But um yeah, ah like I said there, like I think you said in that other passage you just wrote, like, he was trying to wrestle me and I just tried to get him off, I suppose. I honestly don’t remember it too well — that, that part. Yeah.
And is it your evidence that — you’ve been asked about the headlock in the context of when you say your father penetrated your anus?---Yeah.
Now, do you say that here was a headlock just prior to the penetration of your anus or not?---I, I, like, I, all I can remember is at that time my mum holding my hands and having to push off. That is, I, I, again, like, as we’ve said before, my memory obviously isn’t as good as the past but yeah, my, all I can vividly remember is having to push him off to get him off — that’s, that’s all I can remember.
Pamela Copperwaite’s statement
By agreement, parts of the police statement of a witness, Pamela Copperwaite, were read into evidence (the contents of the statement being important to a consideration of grounds 1, 3, 5 and 7):[8]
[8]Emphasis added.
My full name is Pamela May Copperwaite. I’m a legally qualified psychologist, and I’ve worked for 31 years as a psychologist in the clinical and forensic area. [The applicant] has been my client since August 2008. [KAD] rang me around 3 July 2017. It was the first and only contact I have had with [KAD]. I process recorded the phone call, as I normally to [scil, do] with phone calls, onto a notepad.
To this day I recall the phone call because of the chaotic nature of the call. [JH] could be heard in the background yelling out angrily, and [KAD] was attempting to keep him quiet as she spoke. [KAD] asked me if I was [the applicant’s] psychologist. [KAD] stated that she was worried about [the applicant’s] mental state. [KAD] stated that she had found my card at home. I stated that I was previously [the applicant’s] psychologist. [KAD] indicated that a fight had occurred involving her son and [the applicant]. [JH] could be heard in the background yelling out, ‘he raped me’. [KAD] was yelling back at him, ‘he did not rape you, you grabbed your father first, be quiet [JH]’. [JH] could be heard swearing in the background. He was swearing in relation to his father.
[KAD] told me that [JH] had grabbed [the applicant’s] body and bum cheek first, and that [JH] had [the applicant] in a headlock. [KAD] talked in such a way as if she was explaining to both me and [JH] what had happened. I asked [KAD], ‘what is going on?’. [KAD] stated that to get away from [JH’s] headlock, [the applicant’s] fingers grabbed the cheek of [JH’s] bum. [JH] then yelled out, ‘he fucking raped me’. [KAD] yelled back with exasperation at [JH] and said that this did not happen, ‘it was an accident [JH]’.
[KAD] then proceeded to tell [JH] off for saying the comments, and for swearing while she was talking to me. [KAD] said to [JH] loudly, ‘you grabbed your father first’. I interrupted the three way conversation, and asked [KAD] if she and her son would come in for family therapy with [the applicant]. [KAD] ignored my request, and the call ended with me strongly encouraging them all to come in.
Given the importance of Ms Copperwaite’s statement to a number of the issues in the case, we pause to note that, according to Ms Copperwaite, KAD told her:
· first, that the applicant did not rape JH;
· secondly, that JH had grabbed the applicant’s body and bum cheek first;
· thirdly, that JH had the applicant in a headlock;
· fourthly, that so as to get away from JH’s headlock, the applicant’s fingers grabbed the cheek of JH’s bum; and
· fifthly, that any ‘rape’ that occurred was an accident.
KAD’s evidence
KAD is JH’s mother. Her evidence was that she was married to the applicant for ‘24 or 25 years’, until they separated in July 2017. In the evening of Wednesday, 28 June 2017, she was at home with the applicant and JH, preparing dinner.
At her request, KAD said, JH changed the television channel to the news — the applicant was not in the room — and the applicant came back and ‘went nutto’. He was yelling at her, and when JH came out, there was ‘yelling for a bit and a lot of putting [JH] down’. JH said, ‘why is all this carry on about a TV channel when he wasn’t in the room?’. The applicant was angry and ‘just started trying to grab [JH], and grab the remote or something’. JH, KAD thought, ‘pushed him off and tried to sort of get towards his room’. KAD said she thinks she ‘tried to get in between and told him to leave him alone’. The applicant, she thought, grabbed hold of the broom and was ‘swinging it around or holding it, or something with this broom’. At one stage, JH started screaming. KAD said, ‘I think he screamed and sort of went down to the ground and then, you know, ran out of the house’. She then left the house and went looking for him. KAD found JH in the park, and when she asked him about the scream, he said that ‘his father had raped him … stuck his finger up his anus’. The next day, KAD said, JH showed her a photo of a tissue with blood on it. He told her ‘he couldn’t use his bowels’ because it hurt too much.
Those events, KAD said, were the ‘catalyst’ for her telephoning the applicant’s psychologist to ‘try to get help for him’, because his ‘behaviour wasn’t normal’. The applicant moved out of the house permanently on the Friday.
Under cross-examination by the applicant’s counsel, KAD said that she thought ‘at some stage when [the applicant] went to his room, or went somewhere, [JH] got a knife and was holding it at his own arm saying, he’d had enough, he can’t keep doing this’, although she had ‘a vague recollection of the whole thing’. She said that she did not remember JH having the applicant in a headlock. There was then the following exchange:
You remember that they were moving around whilst they were wrestling, that is, that their bodies were moving, hands were moving, it was a moving sort of - - -?---Yeah, okay.
Sorry, I cut you off as you were answering that [KAD], can I just get you to answer it again please?---I said I think so.
You didn’t see, as I understand your evidence, you heard [JH] yell out or scream out, but you didn’t actually see what caused that, is that correct?---That’s correct, but I’ll believe what my son tells me.
I’m not asking whether you believe him or not, just whether you saw it, and I understand your answer to that as, no I didn’t?---No.
The next question is this, after [JH] yelled and he yelled out something, that signalled a separation between [JH] and [the applicant], that is, that [JH] yelled something, and effectively that ended the physical wrestle that they were in, correct?---I think so.
When you went to the park and you spoke to [JH], the words that you used before when you gave evidence, when the prosecutor was asking you questions, the words you used was [sic], that [JH] had said that his father had raped him. Do you remember giving that evidence?---Yeah.
Are they the words you remember being used, or was it words to that effect?---Words to that effect, he stuck his finger up me, I don’t know, [JH] was saying a lot of things, he was very distressed. It was raining, it was in the middle of July, we’re sitting in a park.
Could it have been that the words that were used, that he pushed his finger into his anus?---Oh, possibly, but I’m sure - - -
And then at some later stage - - -
HER HONOUR: Sorry, I’m sorry, the witness hadn’t finished her answer.
[DEFENCE COUNSEL]: Sorry, Your Honour.
HER HONOUR: Sorry, [KAD] can you just - - -
WITNESS: Anyway, it doesn’t matter.
HER HONOUR: No, it’s important that you answer the question to the best of your ability, so what were you going to say?
WITNESS: That all I can remember is that [JH] kept saying that, you know, he’d stuck his finger up me, he raped me, he’s hurt me again, and he was extremely distressed, sitting in a park in the rain, you know, in the middle of winter. So I don’t remember word for word the conversations.
Counsel then cross-examined KAD on her conversation with her husband’s psychologist, Pamela Copperwaite:
So firstly, this is after you’ve indicated to her, look I’ve found your card at home and I’ve called you about what’s happening at the house, do you follow that? That’s the sort of context that it’s happening?---Yeah.
That you indicated to her that fight had occurred involving your son and [the applicant]?---Possibly.
That she says that [JH] could be heard yelling in the background, that he raped me?---I said I can’t remember it all.
You were yelling back at [JH] saying this, he did not rape you, you grabbed your father first?---No honestly, I’ve already said I can’t remember it. I also question how she can remember things from that long ago, and if she was going to write things down and use them against me, I would never have rung her.
That you told her that [JH] had grabbed [the applicant]’s body and bum cheek first?---Once again, I don’t remember the phone call, and if I knew that someone was going to write things down and use them against us years later when you are trying to get someone help, I would recommend that no one ever tries to get people help.
[KAD], I’ll go through these. Just out of fairness to you, if you don’t remember, then just say you don’t remember, and I’ll go through them quickly, okay?---Whatever.
That [JH] had [the applicant] in a headlock?---Okay, once again, I don’t remember, and if I knew that she would be making things up and using things against us, I will never and I will recommend to anyone, never to try to get help for people.
That you told her that to get away from [JH’s] headlock, that [the applicant]’s fingers grabbed the cheek of [JH’s] bum?---Okay, I’m going to repeat myself again. I can’t remember the phone call, how she remembers it this long later, I don’t know, and I would recommend that no one ever try to get people help because obviously it gets used against you. You try to do the right thing and get help, and this is what happens.
That [JH] then yelled out, ‘He fucking raped me,’?---Do I need to repeat myself again? I don’t remember the phone call. How does she remember it? And without saying at the time, I’m going to write this down and use it against you, I don’t see how this has happened.
You’ve then yelled back saying that, ‘This didn’t happen. It was an accident, [JH].’ Do you recall saying that?---No, I don’t.
All right, thank you?---Why do you get people to help if this is what happens?
HER HONOUR: [KAD], would you like to have a short break?---No, I just want something done to this person.
All right?---So, you ring up, trying to get someone help and this what happens to you.
After a break taken so that KAD could ‘settle down’, the cross-examination continued (and ended) as follows:
[KAD], I’ve got three questions left which don’t — which are on a different topic. The first one is this. When [the applicant] and [JH] were involved in that physical wrestle, you were standing close to them, correct?---Yes.
And you could see what was happening between them, correct?---Well, most of it.
When this — after [JH] yelled out or screamed out and the wrestle stopped, did [the applicant] say something like, ‘It was an accident,’?---I can’t remember that, no. I can’t remember anything he said.
All right. So, your position is that as you sit here now, you can’t remember anything that [the applicant] said at the end of that physical altercation, is that correct?---Yeah.
KFD’s evidence
‘KFD’ is KAD’s mother and JH’s grandmother. During the evening of Wednesday, 28 June 2017, she said, JH telephoned her at 10.30 or 11.00 pm, upset. Her evidence was:
He told me what had happened, how he’d [been] sitting on the couch, and [the applicant] was asleep, and he changed the channel of the television, and that disturbed him, and he got up, and tried to attack [JH], put his hands around his neck. And then [JH] kind of got up, walked around towards his room, and he pushed him towards the wall, and put his finger up his backside, which was hard to hear.
The next day, KFD said, JH showed her a photograph on his phone of blood ‘going down his leg’. JH told her that the penetration had been ‘very painful’ and he ‘felt kind of humiliated’.
KFD’s cross-examination was as follows:
Just to clarify, what [JH] told you is that he was sitting on a couch in the lounge room, is that right?---Yes.
That [the applicant] was also on that couch, is that correct?---Yes.
And that whilst they’re both on the couch, [JH] changed the channel?---Yeah.
And then - - -?---Because he was asleep. [The applicant] was asleep.
Sorry?---He said [the applicant] was asleep.
All right?---He’d gone to sleep.
I just missed that word. That’s my fault, sorry, ma’am?---Sorry, he said that [the applicant] had had a lot of wine to drink, then he’d gone to sleep because of that.
All right. And so, [the applicant’s] asleep on the catch [scil, couch] and the, what, [JH] changes the channel and that’s when [the applicant] wakes up, is it?---Yes, and got angry. Or became angry, I should say.
You talked before about someone’s hands going around the neck. Are you saying that [the applicant’s] hands went around [JH’s] neck or [JH’s] hands went around [the applicant’s] neck?---Oh, no, [the applicant] put his hands around [JH’s] neck. He got on top of him and put his hands around his neck.
All right. So, whilst [JH] is on the couch, [the applicant’s] on top of him on the couch and put his hands around his neck, is that right?---Yes, that’s right.
All right. Did [JH] say anything about [the applicant] in a headlock?---No.
Did [JH] saying [sic] anything about him being in a headlock?---Yes. Yes, he had his hands around his neck.
All right. So, when you’re saying that [the applicant] had his hands around his neck, you’re describing — [JH] is saying to you that [the applicant] had him in a headlock with his hands around his neck?---Yes, he got on top of him and put his hands around his neck.
All right?---And then that’s when [JH] pushed him off.
It is convenient to note at this point that, in a number of respects, KFD’s narrative of the events involving her grandson and the applicant differed markedly from JH’s evidence. There are, perhaps, three explanations for this: first, JH changed his version of events between the time he spoke to his grandmother and when he gave evidence; secondly, KFD misunderstood what JH said to her in the evening of 28 June 2017; or, thirdly, KFD is an unreliable historian. Whatever the explanation, however, there are at least five things in KFD’s hearsay version which cannot be reconciled with JH’s evidence: first, that JH and the applicant had been sitting together on a couch in the lounge room; secondly, that JH changed the channel because the applicant had fallen asleep; thirdly, that the applicant got on top of JH whilst they were on the couch; fourthly, that the applicant put his hands around JH’s neck; and, fifthly, that JH pushed the applicant off him.
LM’s evidence
‘LM’ gave evidence that JH was her boyfriend. She said that, at about 9.30 or 10.00 pm on 28 June 2017, she received a telephone call from JH, who was ‘crying, very upset’. He told her that he had been ‘sexually assaulted or raped’ by his father putting his finger in his anus. In the following days he told her he was ‘sore’ from the penetration of his anus.
Informant’s evidence
Detective Acting Senior Sergeant Kenneth Campbell produced an edited record of interview conducted with the applicant on 2 August 2019 (Exhibit D), which was played to the court. He also confirmed that there had been a pretext telephone call on 12 February 2019. In cross-examination he said that the applicant had no prior convictions; had no charges pending; had never previously been interviewed or charged by police; and had ‘never been the respondent in a family violence intervention order application’.
Record of interview
Throughout his record of interview, the applicant claimed that he acted at all relevant times in self-defence. He told interviewing police that, when he made contact with his son’s buttock area, his son had him in a headlock, from which he was trying to extricate himself.
The general tenor of the applicant’s ‘defence’ may be gleaned from the following passages of the record of interview:[9]
[9]Emphasis added.
Q O.K. In relation to the interview today, [applicant], in order to put this in perspective can you provide me with a bit of background in relation to your relationship to [KAD] and [JH] as to where they fit into the scheme of things?
A Yeah, sure, I was married to [KAD] for 26 years, and [we have] one son [JH]. We lived into [a northern suburb address], then we moved up to [a north-eastern suburb address] and on, I, think, the 28th or 30th of June I left the — the premises and decided that we weren’t gunna go ahead any more and divorce and separation from there onwards. So we had a — we had a — 14 to 15 years of — of good marriage. The last 10 years was a little bit difficult with [JH], but other than that — yeah, it was rocky roads at the end. And my son is a big boy, quite tall, he’s quite strong, and we would regularly have arguments and — over minor issues that escalated and, yeah, it got pretty dangerous at the end.
Q O.K. And when you say it got pretty dangerous in – what are you referring to?
A [JH] pulling a knife on numerous occasions wanting to harm himself because me and [KAD] would argue, and he would interfere and pulled a knife on numerous times on myself and I was quite scared of the situation. It was — it was a very difficult situation and I was tempted to put an AVO against him once I left but I didn’t do that out of love and respect but — yeah.
Q O.K. Do you — now, as I stated when I placed you under arrest I said it related to an — an incident which happened allegedly on the 28th … of June 2017.
A Yep.
Q Do you recall that day at all?
A Yeah, I do actually, quite well.
Q Right. Can you tell me in your own words and in as much detail as possible what occurred on that day?
A To the best of my recollection that day me and [KAD] were arguing over some – some minor issue, it may have — I’m not too sure what it was we were arguing, [JH] came out of his bedroom and basically pushed me and said, ‘Stop arguing with your [sic] mum’. I pushed him back. It escalated where we were pushing and shoving each other and I was scared for my safety ‘cause he’s a big boy. It kept on going for about 15 to 20 minutes, we kept on arguing and pushing each other out of the way. I wanted to get out of the situation. I got a bit hot tempered, he got a bit hot tempered, we were pushing and punching each other, O.K., to be honest with ya. I’ll tell you the truth. And we got into a situation where he had me on the — he had me on a — he had me in a headlock on the ground. I couldn’t — I – with my right hand I couldn’t defend myself, so what I basically did was lean around the back and basically — try to grab him here and get him off me. My hand slipped and went into his bum supposedly right (indicates by placing hand on buttocks). That’s what — what happened. So essentially he had me in a headlock from behind, I couldn’t defend myself with my right hand … so I — I leant over here, fell over and tried to get out of what — that’s what occurred. So there was no — there was no malice in that anyway, it was self-defence … to – to protect myself. And that can be corroborated with Pam Copperwaite, which is my psychologist. I went to see her on numerous times throughout our marriage, trying to rekindle it and the wife wouldn’t — wouldn’t come. So there was a time when — if memory serves me right — when [KAD] rang Pam Copperwaite and basically was discussing what was occurring, O.K. And [JH] got on the phone at that time with Pam and basically said, ‘Dad did this to me’. And then [KAD] goes, ‘No, you had him in a headlock, it was self-defence’. So if memory serves me right that is what Pam could corroborate.
…
Q Right.
A So in — in — in a nutshell, when you’re in a situation where you’re scared for ·your safety, I grabbed him on the – on the bum trying to pull him away. There was no malice or no — of — doing anything of that particular nature. I’m not that type of a person, I have never done it before. But it was a very volatile situation in the home, I was scared for my safety and I had to defend myself not in that bad way, but in a way to get out of the situation with the headlock.
…
Q Can you recall what lead up to that situation occurring?
A We were arguing, me and [KAD]. Me and [JH] were pushing and punching each other, just trying to defend myself and I – all I really can recall is being in a headlock and trying to get out of it at the end.
Q O.K. When — when you say that you — you put your hand up his bum, what - - -
A No, no.
Q What do you mean by that?
A No, what it was is it – I’m in a — I’m in a headlock from behind, I grab him from here and my hand slid when I rolled on the ground. So it didn’t purposely go up there to — to hurt him, it slid.
Q Yeah. When you say ‘up there’, what do you mean by that?
A Just on the edge (indicates side of buttocks). So just here like that.
Q On the — on the edge of his - - -
A On — the on the edge of the - - -
Q On the - - -
A - - - bum.
Q - - - buttocks.
A Yes, yeah. So it was a situation where I fell over, I’ve came backwards from the headlock and the hand basically just slid there.
Q And what happened next?
A Well, he — he said that I tried to sexually assault him. I said, ‘No, I didn’t, I was doing self-defence and that’s – it occurred as – in – in a - in a – in an argument situation where there was no intent for penetration in any way’.
Q Right. And. when you say there was no intent for penetration, what do you mean by that?
A Well, putting the finger up the bum.
…
Q Yeah. Well, you were talking about earlier on you were in a headlock and you couldn’t ‘defend myself with my right hand’. So what’s wrong — you — there’s — obviously you’ve got a disability - - -
A Yeah.
Q - - - with your right hand.
A My mother took thalidomide in … the sixties … to stop her vomiting when she was pregnant.
Q Yep.
A So, yeah, that — I’ve lost – three fingers were cut off at birth … because there was no bone joints there. So when you look at the size of my son compared to the size of me there’s a big difference.
Q O.K. So when you — you — you said he’s a big boy. So how tall would [JH] be?
A Six [feet] four [inches], six five, I think - - -
Q Yeah. And how - - -
A - - - off the top of me head.
Q - - - tall would you be?
A 175 [centimetres], I’m pretty small.
Q Yep, yep.
A And a pretty solid boy. Took a long time to get him as our first child of course, our only child. But — yeah, so a big boy I and I feared for my safety on numerous times.
Q Yep.
A And vice - - -
Q So … with the disability that you have with your right arm, that would affect your ability to defend yourself?
A I – I – - - -
Q ……….
A Undoubtedly that would.
Q Yeah.
A And, yeah, I’m not a very strong person.
Q Yep.
A And the situation in regard to the headlock, that was the only way — when you’re pinned on the ground and you’re gasping for breath you — you — you think it could be over. Well, you’re gunna grab here. Well, you’re gunna grab somewhere — to — to — to get yourself off that person. So I’m not – like, I’m — yeah, I’m not very good at defending myself.
Q O.K. So when you — you — you’d mentioned that you placed your hand on his bum.
A Yep.
Q O.K. So — that it slid. So - - -
A It slid.
Q - - - we talked and I — and [name] did try to get clarify [sic] where it slid. Where did it actually slide to? Like, was it between his cheeks? Was it near his anus or - - -
A It was near his anus.
It is noteworthy that the applicant told police that, at 175 centimetres (or approximately five feet nine inches), he was ‘pretty small’, whereas his son, at six feet four (or five) inches (or approximately 193 to 195 centimetres), was a ‘big boy’, a ‘pretty solid boy’.[10] The applicant also told police that he was ‘not a very strong person’, and had a disability to his right arm — three fingers had been removed from his right hand when he was a child — which ‘undoubtedly’ affected his ability to defend himself. None of these matters were disputed by the prosecution. Moreover, the applicant told police that the events of 28 June 2017 unfolded against a backdrop where he was ‘quite scared of the situation’, his son having pulled a knife on him ’numerous times’.
[10]In the pretext conversation JH had apparently claimed to be six feet four inches tall, weighing nearly 100 kilograms: see [20] above.
The applicant’s account was that when his son had him in a headlock on the ground from behind, he could not defend himself with his right hand. In self-defence and to protect himself, the applicant leaned around his son’s back to grab him and ‘get him off’. His hand then ‘supposedly’ slipped (or slid) and ‘went into his bum’ when the applicant came backwards from the headlock and ‘rolled on the ground’. He did not purposely go to that area to hurt JH, his hand ‘slid’. The applicant said that he did not intend to put his finger ‘up’ JH’s ‘bum’. He was ‘just trying to defend [himself] … being in a headlock and trying to get out of it at the end’. The applicant said he was ‘not very good at defending [himself]’. When you are ‘pinned on the ground’ in a headlock, and you are ‘gasping for breath you … think it could be over’, the applicant said, you are going to ‘grab somewhere … to get yourself off that person’.
Ground 1: The judge’s discounting of Ms Copperwaite’s evidence
KAD was an eyewitness to the critical events of 28 June 2017. Presumably, when she telephoned the applicant’s psychologist, Ms Copperwaite on 3 July 2017, her memory of events five days earlier would have been relatively fresh.[11]
[11]See Evidence Act 2008, s 66(2)(b)(i).
Ms Copperwaite’s evidence was of real importance to the applicant’s case at trial. As has been seen, the applicant had claimed in his record of interview that at the time he made contact with his son’s ‘bum’ his son had him in a headlock, and he was acting in self-defence.[12] If Ms Copperwaite’s evidence contained in her statement were to be accepted, KAD had told her that, at a critical time, her son had indeed had her husband in a headlock, and that, so as to escape the headlock, her husband had grabbed her son’s ‘bum’ cheek.[13] Moreover, KAD had told Ms Copperwaite, in effect, that any penetration was an accident, the claim of accident being part of the applicant’s ‘defence’. KAD’s representation that her son had the applicant in a headlock was, in particular, a significant hearsay representation that was admissible to prove that fact.[14]
[12]See [35]–[38] above.
[13]See [21]–[22] above.
[14]See Evidence Act 2008, ss 59, 62 and 66.
Remarkably, however, despite Ms Copperwaite’s statement being admitted into evidence by agreement, the trial judge did not accept that KAD had made the statements attributed to her. As was submitted by the applicant’s counsel in this Court, the judge’s reasons for doing so were deeply flawed.
In her reasons for judgment,[15] the judge introduced her consideration of Ms Copperwaite’s evidence as follows:[16]
Before the trial commenced, I ruled this evidence admissible pursuant to section 66 [of the Evidence Act 2008]. In the trial, the part of Ms Copperwaite’s statement that became evidence was led by agreement, due to the witness’s unavailability on the day she was to be called, and because, it was said, there would not ‘really be’ any cross examination.
It is a matter for me, first, whether I accept what Ms Copperwaite noted was said by [KAD] and by [JH]; next whether I accept it as opinion; and, then, if I accept it, whether as opinion or out of court representations, what weight attaches to the evidence that I have accepted.
I turn first of all to the purported representations of [KAD]. While the evidence was read as an agreed fact, that means only that there is no dispute that Ms Copperwaite ‘process recorded’ the phone call onto a notepad and the statement apparently records what those notes showed. It remains for me to be satisfied that what Ms Copperwaite noted, was said.
[15]DPP v Henshaw (a pseudonym) [2021] VCC 1578 (‘Reasons’).
[16]Ibid [258]–[260] (emphasis added).
Hence, whilst acknowledging that the part of Ms Copperwaite’s statement that became evidence in the trial was ‘led by agreement’ and was ‘read as an agreed fact’, the judge expressed the view that that meant no more than ‘there is no dispute’ that Ms Copperwaite ‘process recorded’ the telephone call with KAD onto a notepad, and that her statement records what her notes showed. The limitations so placed on the evidence does not, however, reflect the basis upon which the parties agreed to the tender of the relevant part of Ms Copperwaite’s statement.
On the third day of the trial, at a time when logically Ms Copperwaite would have been called as a witness in the prosecution case, the prosecutor announced that she was unavailable that day. The prosecutor told the judge that he and the applicant’s counsel had discussed, and still needed to confer further, as to ‘whether she [Ms Copperwaite] would necessarily need to give evidence in court as opposed to potentially coming to an agreement about reading in parts of her statement’, prompting the judge to remark: ‘As to the method of her evidence to be received, that’s fine’.
The next day, counsel for the applicant informed the judge that, subject to one ‘minor issue’, the prosecutor and he had ‘agreed on the fact that Ms Copperwaite’s statement is to be read in, due to difficulties with getting her to court, and really that there would not be any cross examination‘. (The ‘minor issue’ related to the admissibility of KAD’s purportedly ‘lay opinion’, ‘he did not rape you, you grabbed your father first’,[17] which the judge said could be ‘the subject for submissions’ once the evidence was tendered.) The prosecutor then announced, ‘By agreement, Your Honour, parts of the statement of Pam Copperwaite that was made on 27 August 2019 is going to be read into evidence now’, and the relevant parts of the statement were read accordingly.
[17]See [21] above.
Significantly, apart from submitting that KAD’s lay opinion was not admissible, the prosecutor did not seek to place any limitations on the use of the evidence. The prosecution certainly did not submit that the evidence — led by agreement — meant no more than it was not disputed that Ms Copperwaite process recorded the telephone call with KAD onto a notepad, and that her statement records what her notes showed. Indeed, in his final address, the prosecutor made no submission that the notes from which the statement were compiled did not represent an accurate record of what KAD had said. Instead, the prosecutor suggested at one point that KAD may have ‘mistaken’ certain things that she told Ms Copperwaite.
In his final address, the applicant’s counsel relied heavily on the contents of Ms Copperwaite’s notes as reflected in her statement. By way of example, counsel submitted:
[KAD] and Pam Copperwaite, that conversation is important in respect of, well, a number of things but two right now in relation to prior inconsistent statements. Who was the aggressor in the altercation? Because [KAD] tells Pam Copperwaite something different. And whether or not the accused man was in a headlock from his son. And it would seem that the irrefutable pre-text telephone conversation confirm [sic] that evidence that [KAD] was able to tell Pam Copperwaite on the phone in relation to the headlock. And whatever the reason for [KAD] calling Ms Copperwaite doesn’t undermine the evidence or doesn’t make it less reliable.
…
The accused said in his record of interview that he was grabbed and that he was in a headlock. And [KAD] tells Pam Copperwaite that and in my submission there is a consistency there that cannot be ignored. Is it opinion evidence? In my submission it is. [KAD] was there for the physical altercation, right there. She was amongst it and whether she was grabbing at [JH] or grabbing at the accused she was right there.
There has been a significant passage of time since this altercation took place and since [KAD] observed the altercation and indeed spoke to Ms Copperwaite. This conversation was one week after the event and from everything that [KAD] said I think it’s a safe inference that this was a significant incident that stuck prominently in her mind. And whilst the four years between then and now might have had an effect on her, perhaps the other pressures of being in court, her son and ex-husband, who knows what sort of pressures she might have, but we have an account given to someone within close proximity, in my submission in an unguarded moment, where I would submit there’s a high likelihood of it being true.
Notwithstanding these (and other) submissions concerning Ms Copperwaite’s evidence, the judge did not raise with counsel any limitations on its use. She certainly did not raise with counsel during final submissions — or, indeed, at any other point in the trial prior to judgment — that she was minded not to accept that KAD had said what was attributed to her as noted by Ms Copperwaite, and invite submissions on the matter. Despite that being so, the trial judge made the following findings:[18]
[18]Reasons [261]–[262] (emphasis added).
I do not accept that [KAD] said some of the words attributed to her and noted by Ms Copperwaite, for the following reasons:
• Ms Copperwaite is the person said to have received the out of court representations of [KAD], but because Ms Copperwaite was not available to be questioned, I cannot take her demeanour into account, nor her response to any cross examination, or to any clarifying questions I may have had;
• further, there is no evidence before me as to whether the typed notes on which the agreed fact was based were checked by Ms Copperwaite for accuracy against her memory and handwritten notes at the time the typed notes were created by her secretary, which was two years before she made her police statement;
• there is evidence that Ms Copperwaite recalled the phone call because of its chaotic nature, but that very description raises a doubt about the accuracy of her handwritten notes;
• it was the first and only contact Ms Copperwaite had with [KAD] (and, I conclude, with [JH]) so she had no frame of reference other than any history she took from her client;
• I did observe [KAD’s] demeanour in giving evidence and her response to cross examination and find that she was doing her best to recollect the events of 28 June 2017 and the days thereafter;
• despite [KAD] not remembering the contents of the phone call, she did recall, and reiterated in her evidence, the purpose of the call, and when it was suggested to [KAD] from the contents of Ms Copperwaite’s notes that [KAD] said in the phone call that [JH] had [the applicant] in a headlock, [KAD] suggested that Ms Copperwaite was making things up;
Thus, in the circumstances of this matter, it is incumbent upon us to order a new trial unless proposed ground 8 is made out. In other words, we must order a new trial unless we are satisfied that the verdict of the trial judge was unreasonable or could not be supported having regard to the evidence.
The joint judgment sets out the relevant authorities. The issue is whether, upon the whole of the evidence, it was open to the judge to be satisfied beyond reasonable doubt that the accused was guilty. Upon the assumption that the complainant’s evidence was assessed to be credible and reliable, this Court must examine the record to see whether, notwithstanding that assessment, by reason of inconsistencies, discrepancies, other inadequacies, or in the light of other evidence, the judge ought to have entertained a reasonable doubt as to proof of guilt.
Before proceeding further, it is necessary to make one preliminary matter clear. Self–defence was not relied upon before the trial judge. It was raised by the applicant in his record of interview, but it was not part of his case at trial. The only references made by the trial judge to self–defence in her reasons for judgment were where she was summarising what had been said in the record of interview[86] and where she was summarising a prosecution submission about what had been said in the record of interview.[87] The defence case at trial was that the prosecution could not prove beyond reasonable doubt that penetration had occurred, and could not exclude beyond reasonable doubt the possibility that any penetration was accidental.
[86]Reasons [198], [199], [202].
[87]Reasons [227].
According to the complainant’s evidence, the applicant maintained both immediately after the alleged penetration had occurred, and during a discussion on the following night, that what had happened was an accident. The joint judgment sets out the passages from the transcript where the complainant gave that evidence. Defence counsel at the trial was perhaps concerned that whilst accident and self–defence were not necessarily inconsistent, there was tension between an assertion of self–defence and the explanation given by the applicant at the time that what had occurred was entirely accidental. In his record of interview the applicant asserted both accident and self-defence.
The joint judgment identifies the circumstances by reference to which they have concluded that the trial judge ought to have entertained a reasonable doubt as to guilt. Those factors might be summarised as follows:
(a) the disparity in age, size and capability between the complainant and the applicant;
(b) the evidence concerning whether the complainant had the applicant in a headlock;
(c) the evidence concerning who was the aggressor;
(d) whether it is highly improbable that the applicant could have penetrated the complainant’s anus in the manner alleged;
(e) whether it was open to conclude to the criminal standard that penetration was intentional; and
(f) the cogency of applicant’s version in the record of interview.
The factors set out in the joint judgment are matters which could have led the judge to have a reasonable doubt about the applicant’s guilt. However, in my opinion, neither alone nor in combination were they such as to require the judge to have a reasonable doubt.
Before dealing with the specific factors said to require a reasonable doubt, my evaluation of the two relevant issues in this context (penetration and intention) does require the repetition of some aspects of the evidence set out in the joint judgment, and some additional references to the evidence.
The complainant’s evidence is often difficult to follow in the transcript. The trial judge referred to the fact that he spoke very fast, with half–formed or self–interrupted sentences. She said that in the course of her deliberations, she had watched the recording of his evidence. She noted divergences between the transcript and the oral evidence, which she footnoted in her reasons.[88]
[88]Reasons [87].
It seems to me that this is a matter where the trial judge enjoyed an advantage over this Court, she having seen and heard the complainant give evidence both during the trial and during her deliberations.
On the issue of penetration, in my opinion the evidence was sufficient to found a conclusion beyond reasonable doubt that penetration had occurred. The joint judgment has quoted passages from the complainant’s evidence where he said ‘I do remembering him entering’, where he agreed with the proposition put to him that he said to his father immediately after the incident ‘your finger’s gone up my bum’, where he twice said in one answer during cross–examination ‘I do feel like it definitely went in’, where he said it ‘did feel like something was, I suppose inside’, and where in response to it being put to him that maybe the finger or fingers had not penetrated him he had said ‘I still feel like it was — it did go in’.
The complainant also gave a demonstration of what he was trying to describe. When questioned about the ‘mechanics’ of what his father was doing, the complainant said he felt it went from ‘a grab’ to ‘almost like a poking sensation’. A little later he gave a demonstration. The judge described the demonstration as follows:
[JH] was asked to explain what he meant by ‘a poking sensation’ in his earlier answer in cross–examination, that it went from a grab to almost like a poking sensation, and he demonstrated that it went ‘from like that (hand with palm turned upwards and fingers partly closed towards the palm in a grabbing motion) to an upward sensation’ (change to hand with one finger pointing and other fingers closed and an upward movement of the hand); it did not feel like a grabbing, picking up sensation. He added, it felt like a grab to like, inserting.[89]
[89]Reasons [154]
As noted, in the record of interview the applicant asserted both accident and self–defence. As the passages from the complainant’s evidence set out in the joint judgment reveal, on the complainant’s account, both on the night of the incident and on the following night, the explanation his father gave him was accident. When cross–examined on that possibility, the complainant said:
I don’t know, I just don’t know how um, you know you could accidentally put a finger multiple, I can’t, I obviously can’t tell you how many or what it was, accidentally put your finger up someone’s arse and make it bleed, you know, I just don’t know how that acts, accident, I just don’t know how that becomes an accident, yeah.
Once it is accepted that penetration occurred, even in the circumstances of the struggle, an accidental penetration is open to be seen as most improbable. In my view, it was open to the judge to reject it.
I turn then to the specific factors set out in the joint judgment.
Disparity in age, size and capability
It is true, as the joint judgment points out, that the complainant was younger, bigger, stronger and more able than his father. It was put to him in cross–examination, in substance, that he could have overpowered his father if he chose to do so. At one point he accepted that, saying that if he had wanted to put his father in a headlock he could have. But the context is important. The complainant described his father as being in a state of uncontrolled rage. On a number of occasions he described him by reference to a ‘bulldog’. He said that when his father was in that state it was ‘very hard to overpower him’. The description which the complainant gave of the confrontation with his father, and in particular the final struggle in which the alleged penetration occurred, was one in which his father was attempting to lift the complainant off the ground whilst his mother was holding the complainant’s arms, and where the complainant had ‘locked’ his legs so as ‘not to fall to the ground’.
The complainant may well have had the capacity to overpower his father in his enraged state if he was prepared to use sufficient force to do so. But in the context, that capacity does not relevantly bear upon the matters in issue in the way in which it might if the struggle was between strangers. The account given by the complainant of their struggle at the critical time is one in which he was either unwilling or unable to use his superior strength and capacity against his father.
The headlock
The issue of whether the complainant had the applicant in a headlock at the time of the alleged penetration is a significant one. Its importance was recognised by the trial judge in her reasons.[90] The applicant in his record of interview maintained that he was being held in a headlock at the time of the relevant incident. The joint judgment expresses the opinion that the complainant eventually conceded that he had his father in a headlock at the time of the alleged penetration. Like the trial judge, however, I do not accept that the complainant conceded that he had his father in a headlock at the relevant time.
[90]Reasons [271].
The concession is said to have occurred in the course of the complainant’s cross–examination concerning the pretext call.
Before addressing that cross–examination, two other matters are relevant. First, the complainant maintained throughout that at the relevant time his arms were being held by his mother. If that were accepted, then even if he had had his father in a headlock at some point, it was not at the critical point when the alleged offence was committed. The second matter is that the complainant in his evidence consistently maintained the position that his memory had been better in the past than it was at the time of the trial, and that, if there was a written record of something he had said about a relevant matter at a time closer to the event, then he would accept that that was likely to be more accurate. Before being cross-examined about the headlock, he had made a concession of that kind in relation to the issue of whether he had pushed his father into a room, and in relation to the issue of whether the penetration had been from outside or inside his pants.
When cross–examined about whether he had his father in a headlock at the critical time, he initially denied it. It was then put to him that there was a written record of him saying on an earlier occasion, being during the pretext call, that he had had his father in a headlock. Over a fairly lengthy cross–examination on the issue, what the complainant said was that if there was a written record which recorded him as having said that, then he would accept it. He used expressions such as ‘if it says in there’ repeatedly throughout the relevant cross–examination. At the conclusion of that section of the cross–examination, he said the following:
I suppose where it says um, ‘whether you were struggling because I had you in a headlock, because I was trying to get you off my leg’, so I feel it kind of like says it in that sentence. Um, yeah, I’m not sure if you want me to clarify that any further, but it says it in that sentence.
The complainant in his cross–examination did not add anything to what was recorded in the pretext call. If the pre-text call recorded him as having said he had his father in a headlock then, notwithstanding that that was not his recollection at the trial, he would accept that. The cogency and relevance of the ‘concession’ depended entirely upon what was recorded in the pretext call.
Then, in re–examination, another passage from the pretext call was put to the complainant. This passage was from earlier in the pretext call. It recorded the applicant as saying to the complainant:
Yeah, I tried to wrestle you to the ground and you tried to get me in a headlock, too.
As the joint judgment points out, neither the transcript of the pretext call nor the recording of the call itself were tendered in evidence.
In my opinion it is very difficult to make out from the transcript of the trial what conclusions are properly to be drawn from the references to the headlock in the pretext call. As the trial judge said, the passages put to the witness are equivocal and could mean either that the complainant was incorporating his father’s account into the discussion, or that he was asserting that he had his father in a headlock.[91]
[91]Reasons [281].
This evidence then had to be assessed in the context of the complainant’s description of the struggle, and in particular his evidence that at the critical time his mother was holding his arms.
Who was the aggressor?
It seems to me that the issue of who was the first to ‘push’ the other is not of great significance. It is abundantly clear that the initially aggrieved party was the applicant. He was angry that the TV channel had been changed. The complainant described his reaction by reference to a ‘bulldog’, as previously indicated. The complainant’s mother described the applicant as having gone ‘nutto’. In his record of interview, the applicant conceded that an argument between himself and his wife began because he did not want the channel changed. On my reading of the evidence the trial judge’s conclusion that the applicant was the aggressor was certainly open.
Highly improbable circumstances /intention and accident
The joint judgment expresses the view that given that the complainant was wearing both underwear and tracksuit pants, it would have taken considerable strength, dexterity and effort to have accomplished the alleged penetration. The joint judgment concludes that even if it were accepted that that could be accomplished, it was not reasonably open to find to the criminal standard that the penetration was intentional.
It seems to me that there is substance in the observation that a penetration in the circumstances could not have been accomplished without effort, but, if it is accepted that penetration did occur, that consideration militates against rather than in favour of the possibility of an accident. There is substance in the complainant’s response when cross-examined on the issue, as quoted earlier.
The record of interview
In his record of interview the applicant maintained that his hand had ‘slipped’, and that what he did was in self–defence. Self-defence was not relied upon at the trial.
Neither in his record of interview, nor in his discussions with his son after the incident occurred on the night in question and on the subsequent night, was there an emphatic denial that penetration had occurred.
Conclusion
In my opinion, whilst the appeal must be allowed, it is incumbent upon this Court to order a new trial. This is because I do not consider ground 8 to have been made out.
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