Hickman (a pseudonym) v The Queen
[2022] VSCA 75
•28 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0221
| PHILLIP HICKMAN (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of sexual offending, this
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| JUDGES: | T FORREST, WALKER and MACAULAY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 March 2022 |
| DATE OF JUDGMENT: | 28 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 75 |
| JUDGMENT APPEALED FROM: | [2020] VCC 513 (Judge Higham) |
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CRIMINAL LAW – Appeal – Conviction – Charges of sexual penetration of a child under 12 and sexual activity in the presence of a child under 16 – Where complainant’s video and audio recordings of evidence contained inconsistencies and discrepancies – Whether verdict of jury unreasonable – Whether jury must, as distinct from might, have entertained doubt about applicant’s guilt – Criminal Procedure Act 2009, s 276 – M v The Queen (1994) 181 CLR 487, R v Baden-Clay (2016) 258 CLR 308, Pell v The Queen (2020) 268 CLR 123, applied – Extension of time granted – Leave to appeal granted – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J O’Connor | Victoria Legal Aid |
| For the Respondent | Ms E Ruddle QC | Ms A Hogan, Solicitor for Public Prosecutions |
T FORREST JA
WALKER JA
MACAULAY JA:
Introduction and summary
On 19 February 2020, a jury convicted the applicant of four charges of sexual offending against a girl who was, at the time of the offending, aged between 10 and 11 years. The charges arose out of three separate incidents which took place in the western district of Victoria: an incident at a tennis court (charge 2), an incident at Lake Bullen Merri (charges 4 and 6) and an incident in a car at Peterborough (charge 8). Charges 2 and 4 were charges of sexual penetration of a child under 12, and charges 6 and 8 were charges of sexual activity in the presence of a child under 16.
The charges were laid after the police had interviewed the complainant on two occasions, 3 March 2019 and 31 May 2019. Pursuant to s 367 of the Criminal Procedure Act 2009 (‘CPA’), the audiovisual recordings of the interviews (together, the ‘VAREs’)[2] stood as the complainant’s evidence-in-chief at the trial.
[2]VARE is the acronym for Video and Audio Recording of Evidence.
The applicant seeks leave to appeal against the convictions on a single ground, namely:
The verdicts on charges 2, 4, 6 and 8 were unreasonable and/or cannot be supported by the evidence having regard to:
(a) the inconsistent evidence provided by the complainant; and
(b)the complainant acknowledged a lie, during her first VARE, concerning an allegation of sexual penetration at an abandoned house or abandoned shack.
The application for leave to appeal was filed some four and a half months out of time. To proceed, the applicant requires an extension of time in which to file his notice of application to appeal. He made an application for extension of time supported by an affidavit affirmed by his solicitor. Despite the explanation for the delay as set out in the affidavit being short on detail, in the main the delay occurred because of the processes involved in obtaining Legal Aid for the appeal. Having regard to the relevant principles stated in Madafferi v The Queen,[3] the parties accepted that the outcome of the extension of time application would be determined by the merits of the proposed ground of appeal.
[3][2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
For the reasons stated below, we will grant the extension of time in which to file the application for leave to appeal and grant leave to appeal, but dismiss the appeal.
Factual background
At the time of the offending, the applicant was a farrier, aged between 65 and 67 years. He met the complainant through his son, Michael Hickman,[4] who was in a relationship with the complainant’s mother between September 2016 and September 2017. The complainant’s mother was a long-term drug user, had suffered from mental ill-health and her relationship with Michael was punctuated with episodes of family violence. In her VAREs the complainant described how she had been exposed at home to a sexualised environment in which she saw pornographic material and observed an image of sexual activity between her mother and Michael. Over the period of the applicant’s offending, the complainant lived in three households: first, with her mother and Michael, then for a time with a former boyfriend of her mother who she regards as her stepfather, and then finally with her grandparents.
[4]’Michael Hickman’ is the pseudonym for the applicant’s son’s name which was used by the trial judge in the reasons for sentence: DPP v Hickman [2020] VCC 513, [5] (‘Reasons’). In this judgment we will adopt the pseudonym used by the judge.
From about July 2017, it became common for the applicant to take the complainant with him on journeys to districts where he was conducting his work. She would accompany him to farms and stables. Sometimes she would play with the children who were at those places. She was interested in the animals. Over time, the applicant also took her to places to swim, and to visit the applicant’s relatives in Geelong. On her own account, the complainant looked forward to these outings.
In September 2017, some months after the applicant had commenced taking the complainant on such journeys, the complainant’s mother and Michael ceased their relationship. There was a question as to where the complainant should live. Ultimately, by December 2017, the complainant went to live with her paternal grandparents. For a time, she did not see the applicant again. But one day in about December 2017, he arrived at her grandparents’ house with some of her belongings, including a bike, from the former household. The applicant offered to resume taking the complainant with him on his work journeys. The complainant’s grandparents agreed to this, evidently thinking that it would be good for the complainant. The complainant was enthusiastic to do so.
In February 2019, the complainant reported to her grandmother, first, that the applicant had touched her on the leg. To avoid the embarrassment of saying out aloud what the applicant had said to her, she typed onto her grandmother’s mobile phone the words ‘Let me lick ya pussy’ and displayed the text to her grandmother. The complainant then typed ‘[Phillip Hickman] made me have sex with him’.
Following a report made to the police, the complainant was interviewed by way of the first VARE on 3 March 2019 (‘VARE 1’). After police made further investigations they interviewed her again by way of the second VARE on 31 May 2019 (‘VARE 2’). In between the two VAREs, the applicant was interviewed by police on 12 March 2019. Police put to the applicant allegations that the complainant had made in VARE 1. He admitted taking the complainant with him on numerous trips but steadfastly denied any inappropriate behaviour with her.
Also in between the two VAREs the police executed a search warrant in relation to the applicant’s car. In the car they found various items that the complainant had said in VARE 1 were in the car, namely: pornographic magazines, pornographic DVDs, a vibrator and some baby oil.
The incidents giving rise to the charges of which the applicant was convicted were described by the trial judge in his sentencing remarks as follows:
All three occasions of your offending against [the complainant] occurred when she was accompanying you on one of your trips. On a date between the beginning of July 2017 and the end of December 2018 you drove [the complainant] to an abandoned tennis court somewhere in western Victoria. While [the complainant] was sitting down on a bench you pulled down her jeans and underwear and took them off. You rubbed oil over [the complainant’s] stomach and on your own penis and then inserted your penis into [the complainant’s] vagina a number of times. This offending underpins Charge 2.
On another occasion, between July 2017 and December 2018, you drove [the complainant] to Lake Bullen Merri in Camperdown. Whilst you and [the complainant] were seated in a rotunda you used a portable DVD player that you had retrieved from your car to play a pornographic DVD. You insisted that [the complainant] watch the pornographic DVD with you (Charge 6). You then began touching [the complainant] and inserted your penis into her vagina a number of times (Charge 4).
On another occasion at Peterborough between July 2017 and end of December 2018 you were seated in your car next to [the complainant] when you unbuttoned your pants and pulled out your penis and began masturbating. You were telling [the complainant], ‘this little guy is waiting for you’. This is Charge 8.[5]
[5]Reasons, [9]–[11].
Complainant’s account of the incidents
Returning to the complainant’s account of these incidents, in VARE 1 the complainant reported that on a number of occasions the applicant had touched her inappropriately, had shown her pornographic DVDs and magazines and had masturbated himself in her presence (specifically, at Peterborough while seated in his car). Critically, the complainant also claimed that the applicant had ‘raped’ her by inserting his penis into her vagina on at least two occasions — once at an abandoned tennis court and another time in an abandoned house. Although, in VARE 1, she clearly identified an occasion at Lake Bullen Merri when the applicant had shown her pornographic DVDs, it is a matter of dispute whether she also claimed in that VARE that the applicant had ‘raped’ her at the lake.
Key extracts from VARE 1 containing the complainant’s description of the incident at the tennis court are as follows:
A:Well, when - ages ago, we went to a tennis court that was abandoned and he just - ‘cause I - I wanted to go there just to play around with the dog and he just - he got really weird and stuff and, yeah, it happened as well.
Q 111:Tell me what happened.
A:He raped me.
Q 112:Tell me about him raping you in as much detail as possible, if you can.
A:Well, there was this abandoned shack and he just - he - I jumped on the bench to watch Busy - that’s our dog - my dog. Well, he - he says it’s mine. Then it - he just grabbed me. He laid me down and just raped me.
…
Q 119:Can you remember where this abandoned shack was?
A:No. It was, like - it was near a abandoned tennis court, like, near the roads and stuff. It was near a road but there was lots of trees everywhere.
…
Q 121:What did you do - you said he laid you on the ground. Tell me about where he laid you and how he did that.
A: Well, he was - it was on a bench ‘cause I was sitting down and then he laid me on the bench.
Q 122:Yep. How did he lay you on the bench?
A:He pushed me on the bench and did it.
Q 123:What did he do?
A:He - well, he took my jeans off - - -
Q 124:Mm’hm.
A: - - - and started raping me.
…
Q 131:And this is the hard bit. Can you describe what happened then for me?
A:(NO AUDIBLE REPLY)
Q 132:I know it’s really important and it might be embarrassing but I’ve heard many stories before. Are you able to tell me?
A:Well, his private part went into mine.
Q 133:Yeah. How many times?
A:A few.
Key extracts from VARE 1 containing the complainant’s description of the incident at the lake are as follows:
Q 211:O.K. And you mentioned that he raped you or he put his private part in your private part at this tennis court on the bench - - -
A:Mm’hm.
Q 212:- - - and you said it’s happened more than once. Can you remember other places - you don’t have to be specific - - -
A:O.K. Lake - - -
Q 213:- - - but where that would’ve happen,
A:It’s been at a lake - I can’t remember the lake called.
…
Q 218:Where was it? Where were you exactly in the lake? Can you describe what was near you when this happened?
A:There was, like, this thing that was in - like, you know them tent things - that tent thing, but it wasn’t a tent, it was a rock thing.
…
Q 220:I think you’re trying to describe a cover of some sort, something with a roof.
A:Mm’hm.
…
Q 224: Yeah. And what was underneath it?
A:There was, like - it’s, like a little hut thing. It’s got only a bench in it, like, that goes round like - - -
Q 225:Yeah.
A:- - - that.
Q 226:And again, this might be difficult - - -
A:Bullen Merri, that’s what it’s called.
…
Q 231: Yeah. And what happened - I know it’s hard to talk about. What happened that time, can you tell me?
A:He just grabbed the DVD player out of the car and brung it into the hut thing - - -
Q 232:Yeah.
A: - - - and made me watch it and see.
…
Q 234: And what happened then?
A:He - he - he just watched it and he - he just watched it, that’s all. And I was like, ‘I’m gonna just go outside,’ and he was like, ‘Nope, you can sit here with me.’
…
Q 236:Yep. Then what happened?
A:Then he just took me home and I was, like - I really wanted to tell someone but if I did then it would just be embarrassing.
…
Q 238:Did anything else happen out at the hut other than him watching - was he doing anything?
A:Nuh, but he’s - actually, he was actually being gross on another day.
At this point in the interview the complainant digressed to speak about the masturbation incident in the car at Peterborough. The interviewer then sought to press the complainant to describe another rape incident:
Q 257: O.K. You talked about the rape at the tennis court that time - - -
A:Mm’hm.
Q 258: - - - and then I asked you any other times where you’ve been raped in that similar time, you started mentioning the lake at the .......... but that was just where you watched some video of the girls.
A:Yeah, and this - and, like, Geelong as well he took me to a bush.
Again, the complainant digressed. She described an uncharged incident which had occurred at Geelong when the applicant allegedly had laid out a blanket for them to lie on and had ‘been grabby’ and kissed her on the mouth. The interviewer then continued to press the complainant about any other incident where sexual intercourse had occurred:
Q 275: … The one that you talked about at the tennis court where he put his private part into your - - -
A: Mm’hm.
Q 276: - - - private part, did that happen anywhere else?
A:Yeah, like - like - what’s it called? That - - -
Q 277: Lake?
A:Not - not - not the lake. …
After saying ‘not the lake’ the complainant went on to describe an occurrence in a ‘big forest’ where the applicant had taken her to feed a woman’s horse. The applicant had said something to her which she found hard to describe other than to say, ‘it meant, like, raping or something’. But when asked what the applicant did on that occasion she said that he ‘just took me by the arm and dragged me up the hill … I got in the car, he took me home’. The interviewer pressed again for any other occasion on which the applicant had sexual intercourse with her and she then described an incident at ‘an abandoned house’:
Q 294: O.K., O.K. So is there any time like I said at - at the tennis court where he’s put his private part in your private part? Can you remember any other time that that - that that has occurred?
A: At - at - what’s it called? At this house at - no-one was there, though. It’s, like, an abandoned house.
Q 295: Yep.
A: We went inside to explore it and then he just raped me there as well.
Q 296: O.K.
A: It’s exactly like the same one - he did the exact same thing as he did to me the other day.
The complainant gave detailed answers to the interviewer about it being a ‘burnt’ house with ‘parts everywhere on the floor … like — branches’. She said they were in a ‘bedroom kind of looking thing’ in which there was a ‘king or queen sized’ bed made of wood with a mattress and blankets. The interviewer continued:
Q 310: And what did he do?
A: He did the exact same as he did at the tennis court kind of thing.
Q 311: Yep. Can you tell me about that time? I know it’s hard but can you tell me again?
A: Well, about the tennis court or the house?
Q 312: About the house, the - - -
A: He - - -
Q 313: - - - abandoned house.
A: Well, he just started getting grabby and then he just took some of my clothes off and just raped me.
Between the first and second VARE, the police tried to locate some of the places to which the applicant had referred. When the informant spoke to the complainant to tell her that he believed that he had located the abandoned house she had spoken about, and that he wished her to come with him to identify it, she told him, ‘sorry, that bit didn’t actually happen … I didn’t go in the house, we just drove past it, sorry.’ It was because of that statement that the informant decided to interview the complainant a second time.
In overview, in VARE 2 the complainant said that the applicant had not raped her at the abandoned house (also referred to as a ‘shack’) and that she had only said that he had done so because she got scared, was nervous and confused, and had ‘accidentally lied’. But she also said, unequivocally, that the applicant had raped her at Lake Bullen Merri. VARE 2 commenced with the interviewer asking the complainant about her previous account of being raped in an abandoned house or shack:
Q 24: Can you tell me about that conversation, what you remember of it?
A: You asked me about a little shack that I was speaking to you about but because I – [Phillip] used to live there but I got scared and I accidentally lied to you because I was really nervous and I – we didn’t - he didn’t do anything there. He didn’t.
Q 25:Mm. You mentioned the shack.
A:Yeah.
Q 26:Are you talking about the shack that you talk - that you talked to me about in the first time we had a conversation?
A:Yeah.
Q 27:Yeah. And what did you say in relation to that shack?
A:That it was old and burned down and - what else? I can’t remember what else.
Q 28:And this old and burned down shack - how do you know about this shack?
A:Because we used to always drive past it and it just got stuck in my head and I accidentally told you that it - we - he did.
Q 29:Yeah. What did you tell me back then that he did?
A:He raped me.
Q 30:Yeah. And did he rape you?
A:Yes.
Q 31:Did he rape you in that shack?
A:No.
Q 32: O.K. And why is it that you said that he raped you in the shack?
A: I don’t know.
Q 33: O.K.
A: I was just confused and I didn’t know what I was gunna say ‘cause I was scared because I was on camera.
Q 34:O.K. You said that he did rape you. Where was that?
A:Like, there was - at a tennis court, near a lake, in cars, lots of places.
The interviewer then sought a further account from the complainant about what had taken place at the tennis court:
Q 35:Yeah. And the one near the tennis court, you’ve described that in the last time we talked but - - -
A:I can’t remember what I said back then.
Q 36: Yeah. Is what you said back then what really happened?
A:Mm’hm.
Q 37:Yeah. And when that happened, do you remember what time or how old - how old you were? Do you remember?
A:I think I was either 10 or 11 - not 11. Like, 10.
Q 38:O.K. And you’re 12 now.
A:Mm’hm.
Q 39:Can you remember what time of year it might’ve been.
A:No, I don’t.
Q 40:Do you remember if it was - whether it was on holiday - school holidays or during the week or after school, before school? Can you remember anything there that would be able to bring back a time that you could remember?
A:I think it might’ve been school holidays or after school or on the weekend. Either one of those three.
Q 41:O.K., no, that’s fine. In your last talk with me, you mentioned the word ‘private parts’.
A:Yes.
Q 42:What do you mean by that word?
A:But, like, body parts that he’s touched - like, everywhere.
Q 43:Yeah. And what do you know as your private parts? What - what word do you use to describe your private parts?
A:Just private parts is what I use.
Between questions 44 to 67 there was a lengthy discussion as to what term the complainant gave to a penis, which she ultimately described as a ‘thingo’. She indicated that she knew that her ‘private part’ is called a vagina. The interview then proceeded as follows:
Q 68:- - - and obviously the tennis court. You mentioned his private part - I think you described it as - into your private part.
A:Mm’hm.
Q 69:Can you use the words you used before and tell me what happened at the tennis court just to be - - -
A:Well, we went ‘cause I was wanting to hang around there with the dog and play but then he just went over there and just started sitting over there. Then I went over there and - ‘cause there was a tall bench thingo. Then I just sat up there and then he just - I laid down just to - lay down ‘cause my back - my gut - gut was hurting ‘cause I ran around too much I think. And then he pulled his pants down and then mine and then he - yeah, he - his thingo - I can’t say it - went into my vagina.
Q 70:Yeah, O.K. And how long did that last for?
A:Like, a few minutes.
Q 71:O.K., all right.
A: But I didn't even bother doing anything ‘cause he was too strong.
Having received the answer at question 34 that she had been raped ‘at a tennis court, near a lake, in cars, lots of places’, the interviewer then asked again about any other times when the applicant had had sexual intercourse with the complainant:
Q 72:And can you tell me any other times that he put his thingo into your vagina?
A: Near a lake - like, I can’t remember the name of it - Campbell.
Q 73:O.K., O.K.
A: Campbell - like, Campbell - I - I can’t remember what it’s called.
Q 74:O.K. And that was another time. Was that before or after the time at the tennis court?
A: I can’t remember that one.
After a short discussion about the complainant’s movements between households, the interviewer continued:
Q 79:So the time from the tennis court when he put his thingo in your vagina, where were you living at at that time?
A: [Michael’s].
Q 80:[Michael’s] place. And the other times that you described that things happened, I think you mentioned that Lake Bullen Merri he watched some - - -
A: Lake Bullen - yeah, that’s what it’s called.
Q 81:Yeah, Bullen Merri, that he watched some - - -
A: Porn.
Further discussion ensued about the complainant’s living arrangements and her memory of events by reference to where she was living, and the complainant recounted various other events that had happened within the household with her mother and Michael. She contrasted occasions when she happened to see pornographic videos which Michael played on his phone, without her being invited to watch them, and occasions when the applicant asked her to look at pornographic magazines and videos. She referred to such an occasion as follows:
Q 133:And you mentioned another occasion last time we spoke that that happened at Lake Bullen Merri in an - - -
A: Bullen Merri.
Q 134:Bullen Merri in a undercover area.
A: Yeah, that’s - mm.
Q 135:Yeah. Is that what happened?
A: Yeah.
Q 136:Yeah. And just the magazines, separate to the videos. Do - - -
A: No, they came with the videos.
Q 137:They came with the videos. Tell me about them.
A: They just had naked girls in it and boys and their privates and sucking and dribbling and - yeah.
Q 138:Tell me how you came to see them?
A: It - disgraceful, gross.
More discussion followed about the places where and the way in which the applicant invited the complainant to view the pornographic material. The interviewer returned to asking about an occasion of sexual intercourse:
Q 154:You mentioned earlier - when I mentioned the times that he put his thingo in your vagina, you mentioned next to a lake was another time.
A: Yeah, that’s the one that we were talking about just then.
Q 155:Yeah.
A: Lake Bullen Merri.
Q 156: Where did that occur?
A: Under that undercover thing.
Q 157:O.K. Last time we spoke, you said under the cover thing, all that happened was he made you watch - - -
A: Porn.
Q 158:- - - porn.
A: Well, he did say something. I can’t remember though. I can’t remember what he said. It’s a long time ago. I can’t remember what he said.
Q 159:Yeah.
A: Yeah, I can’t remember, sorry.
Q 160:O.K. Last time, you said he looked at some - you made - he made you look at these pornographic DVDs.
A: Yeah.
Q 161:Did that happen?
A: (NO AUDIBLE REPLY)
Q 162:And just prior today, you said that when you were there, that’s when you - that’s when he put his thingo in your vagina. Was that the same time that you watched the DVDs or is that a different time?
A: Same time as well. Both, really.
Q 163:Yeah. How many times have you been to Lake Bullen Merri with him?
A: Lots of times.
Q 164:O.K. And the time that you watched the DVDs and he puts his thingo, as you described it, in your vagina - - -
A: Mm’hm.
Q 165:- - - what time of day was that?
A: Afternoon.
Q 166:How do you know it’s the afternoon?
A: ‘Cause it was, like, sometime in the afternoon - like, something p.m. - 3.00.
Q 167:O.K. And were there other people around?
A: There was random people but some of - what - they all left and then - -
On one view of the complainant’s evidence:
(a) in VARE 1, she claimed that the applicant had raped her at the abandoned tennis court and in an abandoned house, but not at Lake Bullen Merri (where he had only shown her pornographic DVDs); but
(b) in VARE 2, she claimed that the applicant had raped her at the abandoned tennis court, not at an abandoned house (about which the applicant had previously lied), but that he had raped her at Lake Bullen Merri.
Trial
The trial was conducted over seven days. The evidence adduced was tightly confined. It consisted of the complainant’s evidence in the form of VARE 1 and VARE 2 together with a recording of the special hearing conducted under s 370 of the CPA. In the course of the special hearing, counsel for the applicant put key aspects of the applicant’s case to the complainant. That is, he put to her that the applicant had not masturbated himself in front of her, had not watched adult pornographic material with her and had not had sexual intercourse with her. In each case, the complainant stated that the applicant had done these things.
Counsel for the applicant also asked questions of the complainant to lay the foundation for a later submission to the jury that the complainant had a detailed awareness about sexual activity between adults from having seen explicit pornographic material on both her mother’s phone and Michael’s phone at home. The suggestion was also put to the complainant that her version of events was a lie, told to her grandparents to distract them from their anger toward her for misbehaviour at school and in the home.
Apart from the complainant’s evidence, the prosecution called the complainant’s grandparents and the informant. An audiovisual recording of the record of interview between police and the applicant was played in which allegations were put to the applicant and denied by him. Finally, it should be noted that, with the Court’s leave, the prosecution relied upon some of the applicant’s uncharged conduct (touching and grabbing the complainant, kissing her, and so on) as evidence, pursuant to s 97 of the Evidence Act 2008, of the applicant’s tendency to have a sexual interest in the complainant and a willingness to act upon that interest.
In final addresses, the prosecution case was squarely put upon the credibility and reliability of the complainant’s account. She was described as the ‘lynchpin’ of the prosecution case with the central question being whether the jury accepted her word. The prosecution addressed the so-called ‘lie’ about the rape occurring in the abandoned house, highlighting aspects of her confusion between the abandoned tennis court and an abandoned building of some sort, and the complainant’s own explanation of having been scared and having ‘accidentally’ lied.
In conclusion the prosecution submitted that it was clear that the applicant did rape the complainant on a number of occasions and that the complainant was able to tell the jury of two specific occasions: one at the abandoned tennis court, and one at the lake. As for the abandoned house, the prosecutor argued that the complainant had made a mistake, characterising it as ‘some wrong detail in the heat of the moment’. As to why the complainant would keep accompanying the applicant on journeys if what she said was true, the prosecution submitted that the applicant was nice to her, did lots of good things for her and, as in other relationships, she was prepared to overlook the bad things because of the benefits of the relationship.
The applicant’s submission at trial was that the jury should not be persuaded beyond reasonable doubt of the truth of the complainant’s account, in essence because:
(a)first, the complainant was not a credible and reliable witness due to the manner in which the disclosures were made to her grandparents, the incongruity between her enthusiasm to accompany the applicant on trips and her claims as to what happened on them, various inconsistencies in her accounts and, in particular, the admitted lie that she told about having been raped in the abandoned house; and
(b)secondly, the applicant steadfastly denied all of the inappropriate behaviour alleged against him.
There was no criticism of the judge’s charge to the jury. After taking the jury through each element of the crimes with which the applicant was charged, and to the rival positions in respect of those charges, the judge turned to what each side had submitted about the complainant’s reliability. The judge summarised the prosecution’s argument with respect to her credibility and reliability and then the defence arguments as to her unreliability and lack of credit, with particular focus on the submission of deliberate fabrication concerning the so-called rape in the abandoned house.
The judge gave a number of specific directions as requested by counsel, including a clear direction in terms of s 44N(4) of the Jury Directions Act 2015 concerning the language and cognitive skills of a child witness. His Honour also gave an appropriate direction with respect to tendency evidence.
The judge gave the jury the benefit of a comprehensive summation of the evidence and arguments on each of the relevant incidents. As a result, the jury was well equipped to understand, absorb and evaluate the evidence, and to apply the correct principles of law. It was not suggested otherwise.
Legal principles
The language of the applicant’s proposed ground of appeal adopts the terminology of s 276(1)(a) of the CPA, that is to say, that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence. The relevant legal principles for such a ground were not in dispute.
To succeed, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on a particular charge or issue.[6] Another way of expressing the enquiry whether it is open to a jury to be satisfied beyond reasonable doubt is to ask whether the jury must, as distinct from might, have entertained doubt about the applicant’s guilt.[7]
[6]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; R v Baden-Clay (2016) 258 CLR 308, 329-30 [65]–[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35 (‘Baden-Clay’).
[7]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J, Gleeson CJ agreeing at 562 [1], Heydon J agreeing at 597 [117]); [2007] HCA 30.
But, to reach the view that it was not open to the jury to be satisfied of guilt beyond reasonable doubt, and thus to set a jury’s verdict aside, is a ‘serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial’.[8] Furthermore, the ‘boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way’.[9]
[8]Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35.
[9]Ibid.
The High Court explained in Pell v The Queen (‘Pell’)[10] that an appellate court, generally speaking, does not ‘duplicate the function of the jury in its assessment of the credibility of witnesses when that assessment is dependent on the evaluation of the witness in the witness box’[11] (or, we interpolate, in statutory substitutes for the witness box such as by the playing of video-recorded evidence). Importantly, the Court explained that the availability of video recordings of evidence does not disturb the principle that the assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given remains the province of the jury.[12]
[10](2020) 268 CLR 123; [2020] HCA 12.
[11]Ibid 144–5 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[12]Ibid 144–5 [37]–[38].
In a now well-rehearsed passage, the Court in Pell held:
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, 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.[13]
[13]Ibid 145 [39] (citation omitted).
On the evidence as a whole ought the jury to have entertained a reasonable doubt?
Drawing from the passage in Pell extracted above, the applicant put his case succinctly as follows:
The account given in VARE 1 of offending at the ‘abandoned house’ was detailed. In VARE 2, it was retracted in full. The complainant acknowledged that it had been a lie, stating that she had ‘accidentally lied … because [she] was really nervous’. The giving of the account in VARE 1 of offending at the ‘abandoned house’ or shack cannot be dismissed as ‘accidental’. It affected the complainant’s credibility to the extent that the jury ought to have held a reasonable doubt as to her evidence in support of each of charges 2, 4, 6 and 8 in circumstances where the Applicant had denied the offending in his record of interview.
The lie and the inconsistencies asserted above in connection with the complainant’s account of the events the basis of charge 4 together constitute ‘inconsistencies, discrepancies or other inadequacy’ such that this Court can be satisfied that the ‘jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt’.
Expanding on those succinct submissions, the applicant took this Court in detail through the complainant’s evidence in VARE 1 concerning the incident at the tennis court, then to the interviewer’s repeated questions thereafter as to whether there were any other incidents of sexual penetration, culminating in the complainant’s statement, ‘not the lake’. According to the applicant, in context the complainant’s clear evidence in VARE 1 was that no sexual penetration had occurred at the lake.
Proceeding further through VARE 1, the applicant highlighted the interviewer’s further attempts to elicit evidence of any other occasions of sexual penetration. One series of questions elicited answers about the complainant entering a ‘big forest’ to feed a woman’s horse, leading only to the complainant being dragged up the hill and taken home. Another led to the description of the incident near Geelong on a blanket when the applicant kissed the complainant on the mouth. Still another led to the very detailed description of the burnt, abandoned house concluding with the statement that the applicant ‘just raped me’.
As a further cause for doubt about the reliability of the evidence, the applicant submitted that the complainant’s account of the abandoned house incident, as with other incidents described by the complainant, was strong on detail about the context but lacking in detail about the incident itself.
Turning to the complainant’s explanation for having falsely stated she was raped at the abandoned house, the applicant submitted that the false account could not simply be explained away as a ‘mistake’ or as ‘accidental’. So much detail was given about the house and its appearance and contents, right down to the size of the bed and what was on it that, the applicant argued, the description could only be understood as a deliberate fabrication. If it was accepted that the complainant had deliberately lied, the jury was compelled to doubt the remainder of her testimony.
As for VARE 2, the applicant focused on what the complainant said about the lake incident and compared it with what she had said about any incident at the lake in VARE 1. According to the applicant, the complainant’s answers in VARE 1 left no room for her to give any credible account of an act of sexual penetration at the lake. She had been given several opportunities in VARE 1, the applicant argued, to identify a penetrative incident at the lake but, despite those opportunities, she refrained from making any such complaint. Indeed, she had said, ‘nuh’ on one occasion and ‘not the lake’ on another.
Overall, the applicant submitted that the nature and extent of these inconsistencies and discrepancies — and especially the admitted lie — meant that the jury, acting rationally, ought to have had a reasonable doubt as to the applicant’s guilt.
There is no question that there were factual matters with which the jury was required to grapple concerning the complainant’s account. Those matters included the apparent inconsistency between her accounts in VARE 1 and VARE 2 about any incident of penetration at the lake, her apparent non-responsiveness to questions about other acts of penetration other than at the tennis court, which led to detailed accounts of non-penetrative incidents (eg, the ‘big forest’ and the kissing episode at Geelong), and, most significantly, the false account of a rape at an abandoned house.
Yet, all of these matters were squarely and fully litigated before the jury. The credibility and reliability of the complainant’s account was the central question in the trial. It is only if the extent and nature of the inconsistencies and discrepancies were such as to preclude any rational means of reconciling them with a persuasion of guilt beyond reasonable doubt, that this Court can set aside the jury’s decision. We are not persuaded that the identified inconsistencies or discrepancies reach such a high level. There are several reasons why that is so.
First, we commence with the assumption, as stated in Pell, that the jury assessed the evidence of the complainant as credible and reliable.
Secondly, we also accept that, in this realm, the weight to be accorded to the complainant’s evidence remains the province of the jury.
Thirdly, and relatedly, we acknowledge that having seen the complainant give her evidence, the jury enjoys an advantage over this Court in making judgments about credit and reliability.[14] Doubtless, the experience of watching the complainant carefully over the lengthy period during which she gave her answers would have conveyed valuable information to the jury in assessing the credibility of her evidence.
[14]The Court sought submissions from each party as to whether it ought to view the VAREs, particularly having regard to the different interpretations the parties placed upon certain answers given by the complainant. For example, the complainant’s answer to question 277 in VARE 1, ‘not - not - not the lake’, was portrayed by the applicant as an emphatic denial that any rape had taken place at the lake whereas the prosecution contended that it was properly to be understood as the complainant pursuing a different thought occurring to her at the time. Further, there were different interpretations placed upon the complainant’s description of the event at the ‘abandoned house’ in VARE 1, particularly in light of her subsequent explanation that she gave it because she was scared and nervous in front of the camera. From the mere text on the page of the transcript of the VAREs it was difficult to resolve those different interpretations. After receiving submissions, the Court considered that there was a ‘real forensic purpose’ in viewing the VARE’s so as to understand what the complainant’s evidence was, as opposed to assessing its credibility: see Pell (2020) 268 CLR 123, 144 [36] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12; Stuart (a pseudonym) v The Queen [2021] VSCA 260, [10] (Beach, McLeish and Walker JJA).
The jury also saw and heard the other evidence in the case, including evidence concerning the items found in the applicant’s car, which were consistent with the complainant’s account. It may be accepted that the complainant may simply have seen these items in the car, and that they do not necessarily corroborate the complainant’s account, nevertheless, the jury was entitled to take that evidence into account when assessing her credibility and reliability. In particular, the complainant’s evidence was that the applicant had put the baby oil on his penis prior to penetrating her. In his record of interview the applicant denied that, but said that he had used the baby oil on his penis when he was masturbating alone. Unlike the other items found in the car, baby oil is not inherently sexualised. The jury was entitled to reason that the complainant’s evidence of the way in which the applicant used the baby oil was truthful, which supported his conviction on charge 2.
Fourthly, the parameters of reasonableness within which the jury performs its function are not to be unduly narrowed. Thus, fair latitude is to be afforded to the jury in its method of reasoning when evaluating the complainant’s evidence and resolving tensions within it. As the High Court observed in Pell, ‘[t]he jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses’.[15] The jury could, legitimately, have used its own collective perceptions and appreciation of human nature and the scope for variation in people’s reactions and conduct, and, particularly, its understanding of the diverse ways in which children may behave under stress and acute embarrassment. Allowing the jury to employ its collective perceptions and understanding extends to permitting the jury to exercise a healthy degree of tolerance for human mistakes of recollection, expression or judgment where they consider that such tolerance is warranted.
[15]Pell (2020) 268 CLR 123, 145 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
Fifthly, having viewed the VAREs ourselves, we think that it was open to the jury to consider that the complainant’s answer, ‘not the lake’, was addressing another memory she was trying to recall (something to do with the ‘big forest’), rather than unequivocally dismissing any act of sexual penetration having taken place at the lake. Moreover, it was known that the applicant had taken the complainant to the lake on a number of occasions. A jury could have reasoned that she had in mind an occasion when no act of sexual penetration had occurred when she gave that answer.
Sixthly, we also think that it was open to the jury, acting rationally, to accept that the complainant had given a false account of being raped at the abandoned house (in VARE 1) while still remaining persuaded beyond reasonable doubt of the truth of her account of having been raped at the tennis court and the lake. We need not identify how the jury must have reconciled these accounts. It suffices to recognise that there were a number of ways the jury could have been persuaded beyond reasonable doubt of the essential truth of the complainant’s account of having been raped despite her false account concerning the abandoned house.
One way might be that the jury accepted her account of feeling scared and nervous in front of the camera. She was repeatedly pressed for specifics about locations and times of events of sexual penetration. Her evidence as a whole was that events of this kind occurred at several places over an 18-month period during which she had been transported to many country locations, some on repeated occasions. It would not at all be beyond reason that a 12-year-old girl, recalling events of up to two years earlier, might mistakenly transpose the memory of a real sexual assault over another memory involving a real location, but one where a sexual assault had not occurred, and give graphic detail about the features of the wrong location.
But even if the jury considered that, for whatever reason, the complainant deliberately fabricated the incident at the abandoned house, that of itself would not necessarily preclude the jury from still being satisfied beyond reasonable doubt of the truth of the complainant’s account that led to the applicant’s convictions on charges 2, 4, 6 and 8. Much depends upon what the jury thought was the dominant premise in the complainant’s overall account. That is to say, it would be open to the jury to be so persuaded by the complainant’s account of the tennis court rape, the masturbation in the car, the rape at the lake, the playing of pornographic videos in her presence and the other incidents of sexual attention which the complainant described, that the false account of the incident at the house could reasonably be put aside as a discrepancy that failed to disturb the overwhelming convincingness of the remainder of the complainant’s evidence.
In the result, even if a jury might have had a reasonable doubt about the applicant’s guilt, the applicant fell short of persuading us that a jury acting rationally must have had a reasonable doubt about the applicant’s guilt.
Conclusion
We consider that there was sufficient merit in the applicant’s argument to make it just to grant an extension of time within which to file the application for leave to appeal. Leave to appeal will be granted, but the appeal must be dismissed.
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judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s
name.
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