Jason Goillon v The Queen
[2018] VSCA 194
•8 August 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0206
| JASON GOILLON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, HARGRAVE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 July 2018 |
| DATE OF JUDGMENT: | 8 August 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 194 |
| JUDGMENT APPEALED FROM: | DPP v Goillon [2017] VCC 1220 (Judge Sexton) |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of five charges of committing an indecent act with a child under 16 – Alleged inconsistencies between evidence given by complainant at VARE and at special hearing – Evidence of defence witnesses regarding collateral matters ‘unchallenged’ at trial – Whether verdict unreasonable or unable to be supported having regard to the evidence – Application for leave to appeal granted – Appeal dismissed – Ward (a Pseudonym) v The Queen [2017] VSCA 37 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | James Dowsley & Associates |
| For the Respondent | Mr C Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN
HARGRAVE
WEINBERG JJA:
The applicant stood trial in the County Court at Melbourne and was convicted of five charges of committing an indecent act with a child under 16. He now seeks leave to appeal against conviction, relying on the following proposed ground:
The verdict is unreasonable or cannot be supported having regard to the evidence.
Background
On 7 November 2015, the complainant, aged eight at the time, was on a weekend access visit with her father, who was temporarily residing at the applicant’s home. The applicant was then aged 40.
On the Saturday evening, the second night of the access visit, the complainant and her sister were sleeping on an L-shaped couch in the living room. Their father had already gone to sleep in another room. Their younger brother was sleeping on the floor in the living room.
The applicant took his doona from his bedroom and lay on the couch to watch television. Subsequently, the complainant ended up lying beside the applicant, under his doona. It was said that the offences were committed while the two of them shared the doona.
The complainant gave evidence that, at some point while they were lying on the couch, she woke to find that the applicant had placed his penis on her leg (charge 1). She said that he then rubbed his penis against her vagina, and her bottom, over her clothing (charge 2). He next rubbed her vagina with his finger after pulling her clothing to her knees (charge 3), licked her vagina (charge 4), and rubbed his penis against her vagina, causing her pain (charge 5). On 13 November 2017, some six days later, the complainant told her mother what she said the applicant had done to her. Her mother reported the complaints to the police that day, and a VARE[1] was conducted soon after.
[1]A VARE is a Visual and Audio Recording of Evidence. It is standard practice to take a statement from a young complainant in this manner.
On 18 December 2015, the applicant took part in a formal interview with police. He admitted that he had allowed the complainant to sleep under his doona, but denied having touched her inappropriately, or having otherwise offended.
Complainant’s evidence at the VARE
In the VARE, the complainant said that the applicant had ‘put his doodle through [her] fanny and then it came out [her] bum’, he had ‘licked his finger and touched [her] fanny’, and that ‘he got up and got his tongue and licked it on [her] fanny’. She said that the offending stopped when her younger sister got up to go to the toilet. However, after that, he continued to put ‘his doodle through [her] fanny and through [her] bum’. She said that ‘he did it really hard’, and that it caused her pain.
When asked by the police interviewer to describe what the applicant’s penis felt like, she said that it ‘felt like a hairy penis’. She first said that she felt it with her hand, and then said ‘I think it was with my leg … It was with my leg’.
When then asked to say what a penis was, she described it as ‘little and big’. With regard to the applicant’s penis, specifically, she said that it had ‘lines’ on it, and that ‘it had a hole in it where the wee comes out’.
According to the complainant, the applicant gave her five dollars and said to her ‘don’t tell anyone about this because we’ll get in big trouble’. She first said that this occurred ‘at the end of the day’. When prompted by the interviewer, she added that the payment of this money took place before she went back to her mother’s house, which we interpolate as meaning the following morning.
Slightly later in the VARE, the complainant said that the applicant gave her the money ‘before the penis thing, really before it’. She then said that she got the applicant’s wallet, took out a five dollar note, and asked him if she could keep it. He told her that she could.
When reminded by the interviewer that she had earlier said that the applicant gave her money because he ‘did something to [her]’ (meaning after the offending had occurred), the complainant shook her head. When asked if she remembered having said that, she also shook her head.
Whatever the circumstances surrounding the giving of the money, the complainant was clear that the applicant had told her that she was not to tell anyone about the offending. She said that he told her not to ‘tell any of [her] friends at school … because we’ll be in big, big trouble’. She added that he had given her this warning while she was still on the couch, and ‘after he stopped doing it’.
The complainant also said that the applicant was wearing a grey top on the night in question. She said that, ‘it had red on it … it had a red crown on it, I think’. When asked about the applicant’s underwear, she said he was wearing jocks that were ‘blue and black or grey and black’.
Complainant’s evidence at the special hearing
On 3 and 5 April 2017, almost 18 months after the VARE, the complainant was cross-examined by way of a special hearing. She confirmed that the applicant had ‘put [his] rude spot through [her] rude spot’.
When asked whether she saw or felt the applicant’s penis, she said that she ‘saw it and … felt it’. She also said that it was ‘hairy’ on the ‘sides and top of it’. Moreover, she said that it felt ‘squishy’ when he was putting it through her ‘rude spot’.
In her evidence at the special hearing, the complainant said that she had removed five dollars from the applicant’s wallet, with his permission. She said that she took the money from the wallet ‘after’, though it was never made clear precisely what she meant by that statement. She said that she could not remember where she had found the applicant’s wallet.
The complainant subsequently said that the applicant had picked up his wallet himself, and had given her five dollars from it.
Later in the complainant’s evidence, she reiterated that she herself had taken five dollars from the applicant’s wallet. She said that the applicant had first told her that she could not take the money. However, he had gone on to say, ‘if you do something, you’ll get five dollars’. She also said that the applicant’s wallet was either black or brown in colour.
Other prosecution evidence at trial
The complainant’s mother, JW, said that in November 2015, her daughter had been acting unusually at home, and did not want to go to school. On 13 November, six days after the alleged offending, JW asked her what the problem was. The complainant had appeared uncomfortable, and said that it was a secret. After some prompting, she told her mother that her dad’s friend had ‘made her touch his doodle’. She also told her mother that ‘he had put his doodle on her vagina and he had pushed and that it had hurt the back of her bum’. According to JW, the complainant was nervous, confused, and upset at the prospect of getting into trouble.
Applicant’s evidence at trial
The applicant gave evidence at his trial. He said that on 7 November 2015, he had attended a family function. When he arrived home that evening, he ‘was drunk, [he had] had enough’.[2] He agreed that he had consumed eight to ten beers throughout the course of the day, and then two or three more after he arrived home. He said that the complainant’s father was already in bed at that stage, and that the complainant and her sister were sitting on the couch watching television.
[2]Later in his evidence, the applicant said that he was not ‘very drunk’.
The applicant said that he sat on the opposite end of the couch to the girls, under his doona. He said that, at the time, he was in the habit of sleeping on the couch most nights.
The applicant said that the complainant had told him that she was cold. He had replied, ‘you can have some of my doona if you like’. The complainant then joined the applicant under his doona. The situation did not change until morning, when he was woken by people in the kitchen. He said that he did not think that there was anything untoward or improper in allowing the complainant to join him under his doona.
The applicant also gave evidence that he had never owned a t-shirt, or any other item of clothing with a crown on it. He also said that he did not own underwear that was blue, black or grey.
With respect to his body hair, the applicant said that he had been shaving his pubic hair for over 15 years. He said that in November 2015, his genital region was clean shaven.
The applicant also gave evidence that he had not owned a wallet for over 15 years. He said that he never carried cash, and that he always paid for items that he purchased with a card.
The applicant, though challenged in the briefest of terms by the prosecutor as to his evidence regarding his not owning a wallet, and never carrying cash, was not cross-examined as to his evidence of having at all relevant times been clean shaven in the genital region.
Other defence evidence at trial
The applicant’s mother, BG, gave evidence for the defence. She said that the applicant had not owned a wallet since his early twenties. Her evidence was as follows:
Q: Now, what about – are you aware as to whether he uses a wallet or not?
A: No he doesn’t have a wallet.
Q: How long have you been aware of that?
A: Early twenties perhaps, he had a wallet early in the piece but from about 25 years old roughly, can’t say precisely but he’s not had a wallet since.
The prosecutor did not challenge BG’s evidence on this.
The next witness called for the defence was AS, with whom the applicant had been in a sexual relationship for more than three years. Her evidence was as follows:
Q: Has your relationship been such as that over the period, particularly in November 2015, you’ve had occasion to see him naked?
A: Yes.
Q: Are you able to give me indication as to whether that was more than once?
A: Numerous times.
Q: That, just to ensure, that includes the period over the last few months of 2015. Is that right?
A: Yes.
Q: Are you able to say anything to the court about his body hair?
A: He doesn’t have any. He’s always been clean shaven the entire time I’ve known him.
Under cross-examination by the prosecutor, the following exchange took place:
Q: So do you see each other regularly?
A: Yeah, most weeks.
…
Q: Okay. I’m a bit confused as to what you’re saying is his circumstance, when you describe you said, ‘He doesn’t have body hair, he’s always clean shaven’, what are you actually saying?
A: He shaves.
Q: Where does he shave, everywhere?
A: His genital areas.
Q: What, anywhere else as well?
A: His face obviously and no.
Q: Okay, has that been the case all the time that you’ve known him?
A: Yep, yep.
AS also said that she had never known the applicant to own a wallet. Nor had she even known him to carry cash. Her evidence on that point was as follows:
Q: Have you also seen [the applicant] in a position where he's paid for anything?
A: If he has it’s always been with his card. I’ve never known Jason to have cash on him or a wallet or anything, he’s always just got his card.
AS was not cross-examined on the subject of the applicant’s wallet, nor his supposedly never having cash upon him.
Finally, AL, a friend of the applicant, gave evidence for the defence. He said that he had never known the applicant to own a wallet. The transcript of his evidence on this subject reads as follows:
Q: How long have you known him?
A: Twenty to 22 years.
…
Q: Now, how often would you see him now?
A: Every week to every second weekend at the minimum.
Q: Was that the same situation back in 2015?
A: Yes.
Q: Are you able to tell the court about whether he or what sort of wallet he carries?
A: He doesn’t have a wallet, I’ve never known him to have one.
Q: How does he pay for anything?
A: On his key card.
Q: Did you ever see him with cash?
A: No.
AL was challenged with regard to this evidence. Under cross-examination, he said:
Q: When you say he doesn’t ever carry cash, that’s not right is it?
A: Ah, I’ve never seen him with cash, he’s always used his card, we go out nightclubbing, he’ll pay for a card, pay for everything on his card.
Q: Never used cash at all, you’ve never seen him?
A: No, I haven’t, no.
Q: You’re not exaggerating are you?
A: No, I’m not with him all the time during the day, every time I’ve been around him he hasn’t had cash.
All three witnesses who gave evidence for the defence, BG, AS and AL, attested to the applicant’s good character, both as to his honesty and, specifically, in relation to his interactions with children.
Jury addresses regarding the three defence witnesses
Perhaps surprisingly, the prosecutor barely mentioned any of the three defence witnesses, or their evidence, in his closing address to the jury. That may have been because he had elected not to challenge their evidence as regards either the applicant’s shaving habits with regard to his genital region, or the evidence they gave as to his not having had a wallet, and never having used cash.
Counsel for the defence did refer to the evidence of these three witnesses. However, it must be said that he did so in the briefest of terms, saying only that their evidence regarding the wallet had been ‘very firm’. He argued that it cast serious doubt upon the complainant’s account of having taken five dollars from the wallet, as she had claimed.
Counsel barely said anything at all to the jury about AS’s evidence regarding the applicant having been clean shaven. That may have been because her evidence did not rise to the level of asserting that she saw him constantly throughout their relationship, but merely ‘most weeks’.
The trial judge, in her charge to the jury, mentioned the evidence of the witnesses, but only briefly. No exception was taken to her charge.
The fact that the evidence of these defence witnesses received such little attention, in closing addresses, and in the judge’s charge, stands in stark contract with the way in which counsel for the applicant presented his argument before this Court.
Submissions on behalf of the applicant
Plainly, this was a case that depended largely upon the credibility of the complainant. There was no supporting evidence led, save for her complaint to her mother, and what she said in the VARE, some six days or so after the alleged offending. Of course, that evidence did not emanate from an independent source. In truth, as regards the specific allegations of sexual offending, this was classically a case of ‘oath against oath’. The applicant submitted that the verdict was unreasonable, or could not be supported having regard to the evidence. His counsel pointed primarily, in that regard, to what he submitted were significant inconsistencies in the complainant’s accounts of the offending. He also relied heavily, in this Court, upon what he described as the ‘unchallenged evidence’ of the defence witnesses.
Counsel submitted that the evidence of BG, AS and AL, though it dealt with matters collateral, rather than the central events giving rise to the charges themselves, was highly significant. He asked rhetorically, how it was possible that the jury, acting reasonably, could have failed to have a reasonable doubt about the applicant’s guilt, having regard to the alleged inconsistencies in the complainant’s account, the applicant’s own compelling denials, and the evidence of the three defence witnesses?
The first point counsel raised in support of this application arose out of the complainant’s evidence that she either saw or felt (or perhaps, both saw and felt) the applicant’s ‘hairy penis’. In that regard, counsel pointed to the ‘unchallenged evidence’ of AS that in or about November 2015, and throughout the time that she had known him, the applicant was entirely clean shaven in his genital area.
The second main point raised in support of the application related to the complainant’s evidence that the applicant had given her five dollars to remain quiet about what had occurred, and her evidence as to the circumstances in which she had received that money. Counsel noted that that the complainant had initially said that the applicant gave her the money, but later gave a different version when she said that she took the money from his wallet, with his permission.
Counsel also noted that the complainant had, at one stage, said that the applicant gave her the money prior to any offending having taken place. He submitted that she subsequently changed her evidence, and ultimately, claimed that the money was paid after the offending had occurred. This was said to be a particularly important inconsistency, so much so that it rendered the complainant’s evidence wholly unreliable.
Counsel also submitted that whatever version as to when the money was paid was put forward, nothing the complainant said could be reconciled with the unchallenged evidence of BG and AS, (and the partly challenged evidence of AL), that the applicant had never owned a wallet, and never carried cash.
There were other criticisms levelled at the complainant’s evidence. For example, it was submitted that her description of the applicant’s penis as having had ‘lines’ upon it, was improbable because, on her own account, there was very little light in the room at the time.
Finally, it was submitted that the complainant had given inconsistent evidence as regards her positioning on the couch. She initially said that she had sat where she did after being invited to do so by the applicant. Subsequently, however, while watching the VARE with a police officer, she said that she had returned to the couch once she thought that the applicant had gone. These two versions of events could not stand together.
Submissions on behalf of the respondent
The respondent addressed each of the criticisms levelled at the complainant’s evidence, and the points made regarding the evidence given by the three defence witnesses.
Beginning with the complainant’s account of the applicant having had a ‘hairy penis’, the respondent submitted that, at the VARE, she had been asked what it felt like. She said that she felt it with her leg, and that it felt hairy. That evidence was somewhat vague, and left room for the complainant’s account to be accepted, even if as the applicant claimed he generally shaved his pubic hair.
The respondent also addressed AS’s evidence that the applicant had been clean shaven throughout the entire time that she had known him. It was submitted that, having regard to AS’s evidence that she only saw the applicant ‘most weeks’, and not on a continuous basis, and the ‘regenerative quality’ of hair, this evidence did not carry great weight. Certainly, it did not provide any real support for the applicant’s own testimony that he was entirely clean shaven at the time of the alleged offending.
The respondent also submitted that even if the applicant’s evidence that he had been clean shaven at that particular time were to be accepted, it would not follow that the jury would have been obliged to reject the complainant’s account of what the applicant had done to her. In that regard, it was noted that the complainant had not categorically asserted that the applicant was not clean-shaven. Rather, her evidence was that his penis felt ‘like a hairy penis’. Whether a penis felt ‘hairy’ or not, would at best be a matter of impression, and would necessarily involve questions of degree.
As regards the submission that the light would have been insufficient to enable the complainant to see ‘lines’ on the applicant’s penis, the respondent submitted that there was nothing in this point. The complainant’s evidence regarding the appearance of the applicant’s penis was not incompatible with her evidence as to the light in the room at the time. The complainant said that she ‘could see’ but ‘like if you were in a dark room’. The jury were entitled, having regard to that evidence, to accept the complainant’s account of what she saw.
The respondent next dealt with the applicant’s contentions concerning the money allegedly given to the complainant. Counsel noted that in the VARE, when the complainant first mentioned that subject, she did so entirely unprompted. Later in the VARE, she said that she received the money before the ‘penis thing’. That version of events was consistent with her evidence at the special hearing that the applicant had said to her, prior to the offending, ‘if you do something, you’ll get five dollars’.
The respondent submitted that bearing in mind that there was a gap of some 18 months or so between the VARE and the special examination, it was scarcely surprising that a child of such tender years might be uncertain as to the precise sequence in which money had been handed over to her. It was submitted that the critical issue was whether, and not when, she had received five dollars from the applicant.
The respondent submitted that the evidence that the complainant either took five dollars from the applicant’s wallet, or was given it by the applicant, was largely collateral. Importantly, and on either version, the complainant’s evidence was that the applicant gave her money.
The respondent described the defence evidence that the applicant had never owned a wallet, and carried cash, as ‘unlikely’. It was submitted that the jury could have rejected evidence to that effect given by the applicant, as well as the three defence witnesses, on the basis that it was utterly improbable.
Finally, the respondent submitted that the jury were perfectly entitled to accept the complainant as a truthful and credible witness, despite whatever inconsistencies there may have been in her accounts of collateral matters. As regards the central issues in the trial, her evidence was said to have been internally consistent, firm and entirely plausible.
Applicable legal principles
Section 276(1)(a) of the Criminal Procedure Act is in the following terms:
276 Determination of appeal against conviction
(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that—
(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c) for any other reason there has been a substantial miscarriage of justice.
(2) In any other case, the Court of Appeal must dismiss an appeal under section 274.
In M v The Queen,[3] the High Court considered the principles governing unsafe or unsatisfactory convictions. The majority (Mason CJ, Deane, Dawson and Toohey JJ) stated:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[4]
[3](1994) 181 CLR 487 (‘M v The Queen’).
[4]Ibid 493 (citations omitted).
Their Honours went on to say:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred.[5]
[5]Ibid 494.
In Libke v The Queen,[6] the High Court once again considered when a conviction ought be set aside as unsafe or satisfactory. Hayne J (with whom Gleeson CJ and Heydon J agreed) said:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[7]
[6](2007) 230 CLR 559 (‘Libke’).
[7]Ibid 596-7 (citations omitted) (emphasis in original).
In R v Klamo,[8] this Court (Maxwell P, with whom Vincent and Neave JJA agreed) applied M v The Queen and Libke and in doing so, summarised the approach required of intermediate appellate courts when considering whether a conviction is unsafe or unsatisfactory. His Honour said:
1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[9]
[8](2008) 18 VR 644.
[9]Ibid 653-4 [38].
It is clear from these decisions, and many others, that the test for appellate intervention with respect to convictions said to be unsafe or unsatisfactory, is a stringent one.[10] In the present case, in order for the applicant to succeed upon this ground, he must show that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt. In other words, he must establish that upon a consideration of all of the evidence, the jury, acting reasonably, must have entertained a doubt as to his guilt.
[10]See also R v Baden-Clay (2016) 258 CLR 308.
Analysis
The assessment of evidence of child complainants has been the subject of significant attention in recent years.[11] The Jury Directions Act 2015 contains a number of provisions dealing specifically with the reliability of children as witnesses in cases involving sexual offending.[12]
[11]See eg JJB v The Queen (2006) 161 A Crim R 187, 189.
[12]See Jury Direction Act 2015 ss 32 and 33. See also Criminal Procedure Act 2009 pt 8.2.
In Ward (a Pseudonym) v The Queen,[13] this Court considered an appeal on the ground that the convictions were unsafe and unsatisfactory. In that case, Ward was found guilty by a jury of three charges of committing an indecent act with a child under 16, and not guilty on two charges of sexual penetration of a child under the age of 16. The complainant with respect to all of the offending, ‘J’, was aged between six and seven at the time.
[13][2017] VSCA 37 (‘Ward’).
Much as in the present case, the applicant in Ward relied on alleged inconsistences between evidence provided by the complainant in the VARE, and in answers to questions during cross examination at the special hearing. Maxwell P and Redlich JA (with whom Whelan JA agreed, at least on this point) made the following observations concerning the alleged inconsistencies:
Some of J’s answers — read literally — might have appeared to contradict or negate statements which she had made in the VARE or, at least, to raise a reasonable doubt about her evidence …
Resolution of the appeal thus required an evaluation of the importance to be attached to J’s answers, in the light of the account which she had given on the VARE, and of whether they gave rise to a reasonable doubt which the jury should have entertained. That required consideration of the entirety of J’s evidence, her age, the form and content of the relevant questions, their context and other answers given relating to the same issue.
…
Ultimately, it was a question for the jury to assess the evidence as a whole, including the answers given during the VARE and special hearing. The jury had to consider the timing of the special hearing, the way in which cross-examination proceeded, J’s age and her ability to comprehend the questions asked over a lengthy period of cross-examination.
…
The likelihood of self-contradiction by a child, or misleading or inaccurate answers to certain types of questions, is now relatively well recognised. There is a range of possible innocent explanations for inconsistency of testimony. They encompass: intimidation; confusion; lack of understanding of the question; inability to process what is being put; acquiescence; and an over-willingness to agree with suggestions. There are numerous reported decisions in which apparent inconsistencies in the evidence have been attributed to the inherent difficulties in cross-examining children, rather than to any specific deficiencies in the evidence itself.[14]
[14]Ibid [6], [7], [59], [109] (citations omitted) (emphasis added).
Applying these observations regarding the evidence of child complainants, we consider that it was properly open to the jury, acting reasonably, to have accepted the complainant’s evidence as to what the applicant did to her. Likewise, it was reasonably open to the jury to have rejected the applicant’s denials. Having considered the evidence as whole, we do not ourselves entertain a reasonable doubt as to the applicant’s guilt. We are satisfied that nothing in the evidence obliged the jury to entertain such a doubt.
In arriving at that conclusion, we have paid particular regard to the complainant’s evidence in both the VARE and at the special hearing. All members of this Court have viewed both of those recordings, and studied them closely.
During the course of the VARE and the special hearing, the complainant displayed a surprising degree of maturity for one so young. She showed no signs at all of being disingenuous or untruthful. Her description of the events constituting the alleged offences was credible, consistent and detailed.
It must be acknowledged that the complainant’s account of how she came to be given money by the applicant contained some significant discrepancies. However, making due allowance for her age, and the period which had elapsed between the VARE and the special hearing, that is hardly surprising. The critical point is that the complainant was consistent in her description of what the applicant had done to her. It is difficult to conceive of her having fabricated her evidence on that subject. The account that she gave was, in our view, not something that, as was suggested to her, she had dreamt up.
The jury were entitled to treat the evidence of the three defence witnesses, and the applicant himself, on the subject of the wallet, cash and pubic hair, as collateral to the central issues in the case. We note that both the prosecutor and defence counsel approached those matters in that way, and so too did the judge in her charge to the jury.
It was only when the applicant came before this Court that the ‘unchallenged’ defence evidence was elevated to the prominence now attributed to it. It is entirely possible that defence counsel at trial recognised that there were ready answers to a number of the points made about the applicant supposedly having been clean-shaven, having never had a wallet and never having used cash, and therefore did not focus upon them.
Conclusion
Given that some of the submissions put forward on behalf of the applicant before this court raised arguable points, we would grant leave to appeal. We would, however, dismiss the appeal itself.
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