Jeffrey Arbogast (a pseudonym)[1] v The Queen
[2022] VSCA 143
•25 July 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0119 |
| JEFFREY ARBOGAST (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant, complainant and witnesses.
---
| JUDGES: | EMERTON P, McLEISH and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 May 2022 |
| DATE OF JUDGMENT: | 25 July 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 143 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1132 (Judge Hassan) |
---
CRIMINAL LAW – Appeal – Conviction – Indecent act with child under 16 and incest – Whether verdicts unreasonable or cannot be supported by evidence – Inherent improbabilities in complainant’s account – Jury should have had reasonable doubt about guilt – Appeal allowed.
Criminal Procedure Act 2009 s 276(1)(a).
M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 applied.
---
| Counsel | |||
| Applicant: | Mr D Dann QC with Mr P Smallwood and Mr C Grant | ||
| Respondent: | Ms E Ruddle QC | ||
Solicitors | |||
| Applicant: | Paul Vale Criminal Law | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
EMERTON P
T FORREST JA:
The applicant was charged on indictment with seven charges of indecent act with a child under 16 (charges 1 to 4, 6, 8 and 9) and two charges of incest (charges 5 and 7). His criminal trial took place in the County Court before a judge and jury and on 7 May 2021 he was found guilty by majority of charges 1 to 8 and not guilty by majority of charge 9.
The prosecution alleged that each offence was committed between 1 November 2014 and 31 January 2016. The applicant’s granddaughter, Amelia Arbogast,[2] was the complainant in relation to each charge. The applicant, in his police interview, denied each allegation. As is now the practice, the complainant’s evidence-in-chief was recorded in a Video Audio Recorded Evidence (‘VARE’) procedure and she was cross-examined in a special hearing (‘SH’). Recordings of both were played to the jury during the trial.
[2]A pseudonym.
The details of the convictions and sentences imposed are set out in the following table:
| Charge on Indictment | Offence | Sentence | Cumulation | |
| 1 | Indecent act with a child under 16 (contrary to s 47(1) of the Crimes Act 1958)[3] | 4 years | 1 year 6 months | |
| 2 | Indecent act with a child under 16 (contrary to s 47(1) of the Crimes Act) | 2 years 6 months | 9 months | |
| 3 | Indecent act with a child under 16 (contrary to s 47(1) of the Crimes Act) | 2 years 6 months | - | |
| 4 | Indecent act with a child under 16 (contrary to s 47(1) of the Crimes Act) | 4 years | 1 year 6 months | |
| 5 | Incest (contrary to s 44(1) of the Crimes Act)[4] | 6 years | 1 year | |
| 6 | Indecent act with a child under 16 (contrary to s 47(1) of the Crimes Act) | 4 years | - | |
| 7 | Incest (contrary to s 44(1) of the Crimes Act) | 6 years | Base | |
| 8 | Indecent act with a child under 16 (contrary to s 47(1) of the Crimes Act) | 3 years | 9 months | |
| Total Effective Sentence: | 11 years and 6 months’ imprisonment | |||
| Non-Parole Period: | 8 years | |||
| Pre-sentence Detention Declared: | 101 days | |||
| Other Relevant Orders: The applicant was sentenced as a serious sexual offender on charges 3, 4, 5, 6, 7 and 8. Life reporting under the Sex Offenders Registration Act 2004. | ||||
[3]The maximum penalty at the time of sentence was 10 years’ imprisonment. This offence was repealed by virtue of s 16 of the Crimes Amendment (Sexual Offences) Act 2016 and replaced by new offences with effect from 1 July 2017.
[4]The maximum penalty at the time of sentence was 25 years’ imprisonment. This offence was repealed by virtue of s 16 of the Crimes Amendment (Sexual Offences) Act 2016 and replaced by ss 50C−F with effect from 1 July 2017.
The applicant seeks leave to appeal his conviction on all eight remaining charges. He proposes the following grounds of appeal:
Ground 1: The guilty verdicts returned on charges 1 to 8 were each unreasonable or could not be supported having regard to the evidence.
Ground 3: A substantial miscarriage of justice has occurred in circumstances where:
(a)there was evidence that established that DVDs could not be played on the screen that was in the kitchen at [an address in the Western suburbs];
(b)the evidence establishing that DVDs could not be so played was not challenged by the learned prosecutor;
(c)the learned prosecutor nevertheless invited the jury to accept [the complainant’s] evidence that a pornographic DVD was played on that screen as part of one of the alleged episodes of sexual offending by the applicant.
The applicant advised the Court shortly before the hearing of the appeal that he would abandon ground 2, which alleged an audio malfunction in the complainant’s SH. A consequence of the lateness of this abandonment was that we had already viewed the recording of the SH in order to understand this ground.
Before considering the grounds of appeal, it will be necessary to provide a summary of the relevant evidence and events at the trial. We will descend into a more detailed analysis as we consider the grounds of appeal.
Background
The applicant was aged 62 and 63 over the period of the alleged offending. The complainant was aged 10 to 12. The offending was alleged to have occurred between 11 November 2014 and 31 January 2016. At all relevant times the applicant lived with his wife at an address in Hopper’s Crossing. The complainant would regularly stay with her grandparents and would also, on occasion, take holidays with them.
The complainant’s evidence
The complainant stated that she would stay with her grandparents regularly. She had her own bedroom at their house. Sometimes her brother Eric[5] would stay. She would regularly text her grandfather (the applicant) and had a loving relationship with both grandparents.
[5]A pseudonym.
However, in making her complaint to the police, the complainant commenced by describing the ‘so many times’ in which she had been sexually assaulted by the applicant. She said these instances were all ‘kinda the same’: she would be in a ‘cot thing’ beside her grandparents’ bed, with the applicant on the left side of the bed beside her and her grandmother on the other (far) side of the marital bed. The applicant would reach down and touch her vagina. He would sometimes use a vibrator. She would then go over to him, and they would bend over and kiss. She would then go ‘on top of’ her grandfather and he would start ‘humping’ her to the point where he would eventually ejaculate. They would both be naked. Each occasion would take 15 to 20 minutes.
When she was pressed to give specific instances of this conduct, the complainant described five specific occasions on which she said her grandfather sexually assaulted her: three in her grandparents’ home; one in her grandparents’ campervan and one at her grandparents’ business.
The complainant stated that she thought the offending conduct commenced with the applicant saying something like, ‘I’m going to teach you about sex-ed.’ This was said at a time when she and the applicant were lying on his bed in his bedroom. She stated that she undressed herself and climbed on top of the applicant — the applicant told her to move up and down against his penis. His penis rubbed against the outside of her vagina. After 15 minutes of this he ejaculated into a tissue (charge 1). The applicant’s wife (the grandmother) was not at home during this alleged offending.
The complainant stated that on a different date she was sleeping on a camp bed next to a bed shared by the applicant and her grandmother. The applicant reached down and rubbed her vagina with his hand (charge 2).
The complainant stated that on another occasion she went with her grandparents on holiday to Apollo Bay. The campervan was extendable and had beds at either side of its length. Her grandmother slept on one of the beds and she and the applicant slept in the other. The applicant lay on the bed on his back looking at pornography. He started to rub her vagina through her clothing (charge 3). He then put his phone down and started to rub his penis with his other hand. She then went ‘on top of him’ and was ‘kinda just, like, humping him’. The applicant did not penetrate her. He kissed her while he did this. After at least 10 minutes he ejaculated into a tissue. Her grandmother remained asleep (charge 4).
The complainant further recounted that at a different time and at the applicant’s house, the grandmother had gone out for the afternoon. The applicant and the complainant were sitting in the lounge room watching television. Both undressed and lay down on the couch. The complainant stated that the applicant lay on her. The complainant described that he tried to have sex with her, ‘it probably did go inside of me, like, the tiniest — like, not even an inch … it just hurt too much.’ The applicant then, according to the complainant, rubbed his penis outside her vagina and then ‘licked me kind of down there …’. She said she could feel his stubble scratching on the outside of her vagina. This activity occurred adjacent to a window which looked out onto a gate through which the applicant’s wife would be expected to walk upon her return to the house (charges 5, 6 and 7).
The final set of charges related to an alleged episode at the tanning salon that was run by the applicant and his wife. The complainant stated that she went there with the applicant on an occasion whilst the salon was closed to the public. The applicant put a DVD of a pornographic movie on the television in the kitchen. The applicant started touching his penis over his clothing for about two minutes, then pulled his pants down and started masturbating for approximately 10 minutes. He said to her, ‘can you help me please’, and started rubbing her vagina over her clothing. He put his hand inside her underpants and rubbed her vagina for about 15 minutes. He then guided her hand to his penis and she, with his help, masturbated him to ejaculation. They left the salon a short time later (charges 8 and 9. As we have observed the applicant was ultimately acquitted by majority on charge 9.)
More generally, the complainant stated in one or more of the various forms of pre-recorded evidence:
•She couldn’t remember the last time sexual activity occurred — ‘… they were all kind of the same, so I’d say it was just, like, in his bed.’
•The applicant would always sleep on the left side of the bed, his wife (her grandmother) on the right, and the complainant would sleep on the ‘cot thing’ that was next to the bed.
•The applicant’s ring was engraved and it would hurt her vagina when he rubbed her.
•Sometimes the applicant would use a vibrator; there were ‘a lot of different ones’.
•The applicant used vibrators that were kept in a drawer beside his bed. There was also a large back massager which she drew for police.
The complainant also explained that in 2016 there was an argument between her mother’s boyfriend, Ashley, and the applicant. The applicant said to Ashley, ‘If I ever catch you smoking weed in front of my grandchildren again, you are a dead man.’ After that argument, the complainant overheard her mother saying that she believed her parents (the grandparents) had called the Department of Human Services (‘DHS’). The complainant said that event ‘definitely put a negative perspective on [the applicant]’. The complainant wrote a letter to her grandparents ‘… I still love u and always will but because of what happened on Saturday im scared because I don’t ash [sic] to get hurt again’. She decided she wished no further contact with her grandparents.
The complainant stated that her brother Eric was the first person she spoke to about these sexual acts. She also spoke to her best friend Yael. After that she told her father and shortly after that she spoke to the police.
In cross-examination the complainant maintained her account of these events.
Eric Arbogast
This witness is the complainant’s brother. He was aged about 11 or 12 when his sister told him that ‘Gaggy [had] been sexually abusing her’. She told him it happened in the bed when Nanna was also in bed. After she told him this they never went back to their grandparents’ place. She told their mother the same day. From the description he was given it happened at their grandparents’ house while their nanna was asleep next to them. They then went to the police.
Eleanor Arbogast[6]
[6]A pseudonym.
This witness is the complainant’s mother and the applicant’s daughter. Her two children Amelia (the complainant) and Eric would stay overnight with her parents. Amelia had her own bedroom. Eric would rarely stay over. The applicant spent a lot of time with Amelia when she was aged between 10 and 12. He would take her to soccer and for drives and seemed to have a good relationship with her, as did Amelia’s grandmother. Amelia was never reluctant to go away with them and was always happy when she returned. When she came back from Apollo Bay she was happy. This was ‘maybe’ at the time of her twelfth birthday. The witness was aware that Amelia and the applicant shared a bed in the campervan. At the time she had no difficulty with that. At the tanning salon there was a security system and a small portable television in the kitchen. She could not recall whether there was a capacity to play DVDs through that small portable television.
The applicant confronted Ashley at the end of July 2016. He was flicking Ashley on the nose and saying, ‘Come on, be a man, stand up. Come on, let’s work this out.’ Amelia was there and was screaming for him to stop. The witness stated that she told the applicant to leave, and between July 2016 and July 2017 she had no contact with her parents. She may have said to Amelia that the applicant and his wife reported her to the DHS, but she could not recall. She assumed it was them. She learnt of the allegations of sexual abuse against her father in July 2017. She found out from her former partner Thomas Young[7] who was Amelia’s father. She got a phone call in the evening and they all met at Footscray police station.
Camille Arbogast[8]
[7]A pseudonym.
[8]A pseudonym.
Camille Arbogast is the wife of the applicant and the complainant’s grandmother. She had a very close and loving relationship with her grandchildren. She fully trusted the applicant with Amelia. Although this witness and the applicant set up a nice bedroom for Amelia she would still come into ‘our bedroom’. Amelia would jump in between them in bed which would wake them both up. Amelia wouldn’t sleep much when she got in the bed so a camp bed was set up beside the bed for Amelia to sleep in. Amelia slept on the camp bed for about a week and a half until the applicant was able to set up the adjacent study as Amelia’s bedroom. Amelia slept in a ‘onesie and underwear’.
Camille Arbogast stated that she was a very light sleeper and that noises and movement would wake her up. The applicant never wore pyjamas in bed and often the witness would not either. She never saw the applicant kiss Amelia; she never woke up and found Amelia naked in bed; she never saw the applicant on top of Amelia; she never heard anything that sounded like sex.
Amelia came to Apollo Bay to stay in the campervan on two or three occasions. There was one night that Amelia climbed into bed with her and the applicant. Camille Arbogast went to the other bed to sleep. The applicant did not wake up and was not using his phone. The witness struggled to get back to sleep. If people were moving on one side of the campervan, the other side would sway. She did not ever hear or see anything of a sexual nature between the applicant and Amelia.
The television at the tanning salon was old and only used for the security cameras. There was no DVD player as part of the television unit and a disc could not be inserted into it. The television was connected to a digital recording device.
In July 2016 there was a falling out between Camille Arbogast and her daughter Eleanor. She went to Eleanor’s house to talk to her. Eleanor came to the door, cursing and accusing her of getting DHS onto her. Ashley came out of the house and they screamed at the witness and told her to get away from their home.
Camille Arbogast never observed the applicant watching pornography.
The applicant’s ring is an ordinary band which does not catch on hair or clothing.
There were never any vibrators in the bedside table.
Other prosecution witnesses
Detective Senior Constable (‘DSC’) Abbey Justin had initial carriage of the investigation. She met with the complainant’s parents on 15 July 2017 and conducted the VARE with Amelia on 20 July 2017. She executed a search warrant on 26 July 2017. In the bedroom cupboard and the study she located some pornographic DVDs. She did not locate any vibrators. She located and seized a back massager along with computer equipment.
Thomas Young’s statement was read to the court.[9] He stated that he was Amelia’s and Eric’s father. On 14 July 2017 he had his children with him at his mother’s house. Mr Young told Amelia that he was proud of her and joked, ‘I wouldn’t be so proud if you were pregnant at this age’. Amelia started crying and said ‘You’re not going to be proud of me.’ She then said ‘Gargy [the applicant] had been touching her’. She said her breasts and ‘down there’ were touched under her clothes. She told the witness it felt nice when the applicant touched her. The witness took her to Gisborne Police Station the next day.
[9]Mr Young died before the trial commenced.
The informant, Detective Acting Sergeant Peter Romanis, took over the investigation from DSC Justin. He confirmed that the applicant had no prior criminal history.
The applicant’s police interview was played to the jury. The applicant stated that Amelia at times lived with him and his wife. Amelia would come into their bedroom and jump into the bed with them. As a consequence they set up a camp bed for Amelia to sleep on.
The applicant denied all allegations of sexual impropriety:
Q376 And she says that your wife had gone down to the shops and that you and her were both on the couch and you were both naked and you were trying to penetrate her with your penis - - -
A No.
Q377 - - - but it was hurting her.
A No, definitely not, nuh.
…
Q442And she says that she was sitting on the chair and you have started to rub your own penis over your pants.
A Nuh.
Q443 And then you’ve gone over to her - - -
A Nuh.
Q444 - - - and started to rub - - -
A Nuh.
Q445 - - - her vagina - - -
A Nuh.
Q446 - - - over her pants.
…
Q453 So that’s the time at the - - -
A Mm.
Q454- - - salon and she’s saying you ejaculated into a tissue and after you finished, you — you rubbed her on - - -
A Definitely not.
Q455 - - - the back of the head - - -
A No, no.
Q456 - - - and said, ‘Thank you.’
A Nuh, nuh, nuh, nuh, nuh, definitely not.
…
Q468 So she’s saying you’ve used that massager to rub on - - -
A Nuh.
Q469 - - - her vagina - - -
A Nuh.
Q470 - - - area.
…
Q481 She’s saying that you would rub her vagina.
A Nuh, nuh, nuh.
…
Q553 And she’d said that again that you attempted to penetrate - - -
A Nuh.
Q554 - - - her with your penis, but again it hurt - - -
A Nuh.
Q555 - - - her too much.
A Nuh, no, nuh, nuh, definitely not, definitely no.
Q556 And she also speaks about a time where you’ve ejaculated on her stomach or - - -
A Nuh.
Q557 - - - around her - - -
A Nuh.
Q558 - - - stomach/vagina - - -
A Nuh.
Q559 - - - area.
A Nuh, nuh, nuh, nuh, nuh, nuh, nuh.
Q560 Mm.
A Nuh, nuh, nuh, nuh, definitely not.
…
Q564Well, she said you sort of — you — you and her developed this really close relationship and — when this was happening- - -
AMm.
Q565- - - you know there’d be lots of passionate kissing and hugging and cuddling and things.
AThere’s always — you always kiss and hug your — your grandchild.
Q566 No, but I mean like passionately kissing her on the - - -
A Nuh.
Q567 - - - lips.
A Nuh, nuh, she’s 10 years old or 12 years old, you know.
…
Q640Yep, all right. Do you have anything else you want to add to these allegations or - - -
A Definitely it was no sexual stuff like that.
Other relevant answers are as follows:
Q121 So you were there from birth?
AYeah… there was never — except for last year when Ashley came on the scene. Ashley — that was the time when — when somebody… he was showing the kids how to do bongs.
…
Q226 And did you guys go away anywhere together - - -
A What, as a - - -
Q227 - - - on holidays?
A- - - family, yes we — where’d she go… Probably Apollo Bay would have been the place that she went to.
…
Q510So she’s saying that [Camille] was sleeping at one end [of the caravan] - - -
A Mm.
Q511 - - - in the bed and - - -
A Yep.
Q512- - - it was just her and you were in the other end, [Eric] wasn’t there and you were sharing a - - -
A We did.
Q513 - - - bed with her?
A Yes, we did sleep like that, yep.
…
Q267And has — would — did [Amelia] spend much time at the tanning salon?
A Maybe after school, her and her mum used to call in with [Eric] and that sort of thing.
Q268Mm.
ABut no - - -
Q269No, OK.
A- - - not really, no, there wasn’t really nothin’ to do for her in there, there’s nothin’- - -
…
Q290So could you watch other things on the television or is it — what - - -
A Well, you - - -
Q291Like — like, could you put DVDs in or videos or things and that or - - -
A Nuh.
…
Q664Now, do you wish — do you wish to say anything in answer to the allegations or charges?
AI’m not guilty of those — I — I’m saying like, if it’s — if it’s sleeping naked - - -
Q665Mm.
A- - - with me granddaughter, yes, I do …
The applicant did not give evidence and relied on his answers in the EROI. The applicant called two character witnesses who had known him for many years and had seen him often in the company of and caring for children. The applicant was described variously as happy, helpful, well liked, reliable, trustworthy and honest. Neither witness ever felt concerned leaving their children in the care or company of the applicant.
This application
Ground 1
Ground 1 contends that the verdicts on charges 1 to 8 were each unreasonable or could not be supported having regard to the evidence. This ground is formulated in the terms of s 276(1)(a) of the Criminal Procedure Act 2009. The applicant bears the burden under this ground of demonstrating that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on one or more of the particular charges in dispute.[10] This Court is required to conduct its own independent evaluation of the evidence, however, in doing so it must give full weight to the jury’s advantage in seeing and hearing the witnesses, and the principle that the jury was the body entrusted with the principal responsibility of determining the guilt or lack of it of the applicant.[11]
[10]M v The Queen (1994) 181 CLR 487, 492−3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’); SKA v The Queen (2011) 243 CLR 400, 405−6 [11]−[14] (French CJ, Gummow and Kiefel JJ); [2011] HCA 13.
[11]R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35.
In this application the applicant contends that the complainant’s evidence was neither credible nor reliable and that, as a consequence, the jury were bound to acquit on all charges. That part of the evaluation of a witness’ reliability and credibility which is based on the manner in which the witness gave her evidence is a matter for the jury and not this appellate court.[12] In Pell v The Queen, the Court stated:
Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The 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. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.[13]
[12]Spurritt v The Queen [2021] VSCA 7, [78].
[13](2020) 268 CLR 123, 144−5 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (citation omitted) (‘Pell’).
The High Court then explained how this approach to a witness’ demeanour did not relieve an appellate court of its duty to examine the record, and determine whether the jury ought nonetheless to have entertained a reasonable doubt as to proof of guilt. The Court continued:
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.[14]
Submissions
[14]Ibid 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citation omitted).
The applicant correctly submitted that there was no evidence, independent of the complainant, that could have sustained any of the eight verdicts of guilty. The applicant submitted that the prosecution case on each charge depended upon the jury accepting the complainant’s evidence as proof beyond reasonable doubt of the offences charged despite other evidence that ‘either directly or circumstantially’ compelled a reasonable doubt.
The applicant then pointed to various aspects of the evidence that in combination ought to have caused the jury to experience a reasonable doubt. Briefly stated those aspects are:
(i)The complainant’s evidence that the applicant frequently offended against her in the applicant’s bed while the applicant’s wife was present. The prosecution did not challenge the applicant’s wife in her evidence that offending conduct could not have occurred.
(ii)The complainant’s evidence that the applicant wore a ring, said to be engraved, and which would hurt her while the applicant was sexually offending against her. The applicant relied on Camille Arbogast’s evidence that the ring was a plain band which didn’t catch on clothing, hair or similar.
(iii)The television in the kitchen at the tanning salon was not able to support a DVD disc, contrary to the complainant’s evidence.
(iv)The complainant stated that there were vibrators in the applicant’s bedside drawer which the applicant would use on her. She distinguished between these vibrators and a larger back massager. Subsequently in the SH she recanted this evidence. Camille Arbogast also disputed its truth.
The applicant submitted that there was no rational basis for the jury to reject Camille Arbogast’s evidence and that it could not be reconciled with the evidence of the complainant in many important respects. Further, insofar as the complainant’s credibility was damaged by other evidence or discrete matters, the damage was significant and relevant to a general assessment of her overall reliability and credibility that went beyond the assessment made by the jury of the complainant as a witness in the witness box.
The applicant further submitted that his emphatic denials in his record of interview, and his established prior good character, also informed the question of whether the jury, acting reasonably, must have had a reasonable doubt.
The respondent submitted that the only charged offences said to have occurred in the presence of Camille Arbogast were charges 2, 3 and 4, and the latter two offences were committed at a time when Camille Arbogast was in a different bed to the applicant and the complainant. The circumstances of charge 2 were said not to be improbable given that Camille Arbogast was turned away from the applicant and was listening to her radio, the applicant reached down from his bed to touch the complainant in the camp bed, and she remained quiet.
The circumstances of charges 3 and 4 (the offending in the campervan at Apollo Bay) were also contended not to be improbable. The applicant and his wife were in different beds and the complainant slept in the same bed as the applicant. The complainant stated that her grandmother ‘was kind of deaf’ and would have been using earphones to listen to the radio. On this occasion, according to the complainant, she was asleep and snoring. She stated that ‘we always checked’ that ‘Nanna’ was asleep.
Insofar as the uncharged conduct was concerned, the respondent submitted that the uncharged conduct of a similar nature to charges 3 and 4 (that is, passionate kissing and prolonged ‘humping’ with the grandmother nearby or in the same bed) was not necessarily improbable. Brazen and risky conduct is not necessarily improbable.[15] The risk of detection, it was submitted, does not render the account improbable. The respondent submitted that there was evidence from the complainant’s brother that his grandmother was a heavy sleeper and from the complainant that her grandmother was deaf and snored. The respondent submitted it was open to the jury to accept this evidence from the complainant and her brother.
[15]The respondent cited Robbins (a pseudonym) v The Queen (2017) 269 A Crim R 244; [2017] VSCA 288 in support of this proposition.
We observe that this necessarily involved a rejection of Camille Arbogast’s evidence.
The respondent submitted that the wedding band issue was of little significance, and that when the complainant’s evidence is read as a whole it is clear that she used the word vibrator and massager interchangeably. What was said by the complainant at the SH clarified that there were no ‘sexual vibrators’; the reference to vibrators in the VARE was to ‘actual vibrators’ and this phrase was not clarified at the SH. Thus, the respondent argued, this was a clarification rather than an inconsistency.
As to the issue concerning the television at the tanning salon and whether it had the capacity to play a DVD, the respondent contended that whether a pornographic disc was directly placed into a slot in the ‘old TV’ or into a separate device attached to the TV was of little import. The complainant’s mother, who had worked at the tanning salon, confirmed there was a small portable television at the salon, used as a television, but she could not recall whether there was a DVD player built into the television or whether there was capacity to play DVDs through the television. She stated that she thought DVDs were played for the children through the television but she could not recall. She recalled, however, that the children did watch DVDs through ‘a laptop’ and that the applicant would bring this laptop to the tanning salon. The respondent then referred to Camille Arbogast’s evidence which confirmed the presence of the television at the tanning salon, but that there was no DVD player. The respondent submitted that it was open to the jury to accept the evidence of the complainant and her mother.
The respondent submitted that Camille Arbogast was at times ‘discursive and evasive’.[16] She stated that the applicant never went to work after hours, whereas the applicant said in his police interview that he did on occasion. Camille Arbogast also stated that the applicant never watched pornography. However, pornography was found by police at the applicant’s home and he admitted in his police interview to watching pornography and that the complainant may have come into the room when he was watching it on one occasion.
Consideration
[16]In written submissions the respondent pointed out that the judge described the evidence of Camille Arbogast as ‘discursive’ and cautioned both counsel to be careful. Her Honour’s impression was the witness still focused upon the rift with her daughter, the complainant’s mother. This submission is unhelpful and should not have been made. These remarks were made in discussion with counsel in the jury’s absence and have no place in our independent evaluation of the evidence in the applicant’s trial.
This ground of appeal is directed at the complainant’s credibility and reliability. Applying Pell[17] the Court must accept that the complainant was assessed by the jury as credible and reliable. Notwithstanding that assessment, the court’s task is to examine the record to determine whether, by reason of any inconsistencies, discrepancies or other inadequacies, it is satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to guilt.[18] It is a significant step for a court to overturn a jury verdict.
[17](2020) 268 CLR 123; [2020] HCA 12.
[18]Ibid 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
The applicant relies on a number of asserted improbabilities which, it is submitted, in combination compelled the jury to have a reasonable doubt about the allegations made against him. In our view, a number of these can either be dismissed or accorded little weight in any combination of them. For example the complainant gave evidence that the applicant wore a ring that hurt her when the applicant was offending against her. She attributed this to the ring being engraved and thus abrasive. Camille Arbogast gave evidence that the ring was not engraved. We agree with the respondent that the significance of this evidence is that the complainant asserted that she felt pain when offended against — the complainant’s opinion as to why the wedding band caused her pain is of little significance.
Charge 8, it will be recalled, was said to have occurred at the tanning salon and to have been committed in the context of the applicant playing pornography on a small, old-style television situated in an elevated position in the staff room at the back of the building. The applicant’s ultimate position was that DVDs could not be played on that television and so this allegation by the complainant was discredited with a concomitant impact upon her credibility. We are of the view that whilst the evidence of the other witnesses on this issue did not support the complainant’s account in some respects, that evidence was in other respects vague, uncertain and at times confusing.
The complainant said the applicant:
[G]rabbed the remote, like, to the TV obviously, turn it on and then he put in a disc, ‘cause it was the old ones, like, the old TVs, it wasn’t a flat screen, it was, like, the small ones. And he put in the disc ‘cause he was tall enough, I think, yeah. And he put in this disc and he, like, grabbed it out of this — kind of, like — like CD thing almost, like — like, a fold out CD holder kinda thing. And — and it had, like, all porn stuff and some of them were normal movies. And he’d take — he took one out then he put it in and then he played it.
On this issue, at the SH the complainant adopted the cross-examiner’s description of the TV as ‘having a disc player attached to it’. The complainant’s mother, Eleanor Arbogast, confirmed the presence of the television on the wall of the kitchen.[19] She stated that it was used as a television and was moved around the kitchen walls as the reception was variable. She was asked, ‘When the TV was on the wall … was there a DVD player?’. She replied, ‘I can’t actually recall if there — if it was a TV or a DVD player incorporated. Um, couldn’t tell you.’ Nor could she recall whether there was, whatever the setup, a capacity to play DVDs through the television — ‘I think perhaps maybe for the kids? I don’t know.’ Camille Arbogast, the applicant’s wife, confirmed the presence of the television in the tanning salon and stated that it was only used to display images from the security system.
[19]It seems the ‘staff room’ and ‘kitchen’ were referred to interchangeably. Nothing turns on this.
Camille Arbogast was a prosecution witness. The following passage is taken from her evidence-in-chief:
[PROSECUTOR]: Was there a television in there? - - - The television was the security system. It was only used for cameras.
Yes. Well, was it — was it a- - - ? - - - It was a - - - small – was it a television? - - - It was an old TV, yes.
And where was that? - - - It was on the shelf above where we would (indistinct) the cleaning station. It was up above here so that we could watch.
Okay. So, you may not be able to answer this, but sort of how high above the ground was it? - - - Well, if I stood up it was — so I’m four foot 11, so - - - it would’ve been just below my head, so four foot eight, four foot nine - - -
Yes, okay. Was there a DVD player as part of the unit, or with the unit? - - - No, um, it was a digital, ah, recording device, so it was, um — it was, ah, what is it, DVR? Um, it was digital. There — it just sat — our son put it up and there was four cameras around the studio.
Yes, that’s the security system you’re talking about, is it? - - - Yeah.
Yes, all right? - - - And the screen was split into the four security areas.
In cross-examination, Camille Arbogast gave the following evidence concerning the television:
[DEFENCE COUNSEL]: And you were asked whether it was a DVD attached to it and you said there wasn’t, and what you said was - - - ? - - - No.
- - - that it was a DVR attached to the security monitors. Do you — is that DVR, is that the hard drive to record the security monitors; is that what you’re talking about? - - - Yes. Yes. Our son set it up. It’s just a — to me, it’s just a box with a whole lot of wires goes in.
Okay? - - - Ah, come through the cameras and into the TV’s that we could watch it, or.
Okay. So is it — is the security recorded on that device? - - - Yeah.
Okay. And it’s not something you put a disk into. It’s a hard drive? - - - You can’t put a disk into anything of it. It’s just a box.
The applicant contends that the above evidence, together with the applicant’s answers in the record of interview, are enough to demonstrate definitively that the pornographic DVD could not be played through that television.
We do not accept this submission. The fact that there was a television positioned at some elevated point in the staff room is undisputed. It is clear to us that Eleanor Arbogast simply did not know whether DVDs could be played through the television, and Camille Arbogast’s evidence was, in our view, far from definitive on this issue. She said she thought it was only used to display security footage, contrary to the evidence of Eleanor Arbogast, who said the television was separate to the security system at the relevant time.
In our view, the evidence on this issue falls well short of proving falsity in the complainant’s evidence with respect to the offending the subject of charge 8, or this discrete contextual circumstance.
However, there were other improbabilities in the events and conduct alleged by the complainant, which, we consider, raise real concerns about the reliability of her evidence overall.
Vibrators
In the complainant’s VARE she gave the following account about the applicant’s use of vibrators and a back massager upon her. Relevantly she said:
Q1024 You mentioned that he’s used a vibrator before.
A Yes.
Q1025 Tell me about that.
A… He — sometimes he would, like, I only remember short things about some of them … like, only small detail, very small.
Q1027 So maybe try and just tell me about one that you can remember.
ALike, that vibrator thing?
Q1028Mm.
AI don’t know exactly what it looked like, I cannot remember ‘cause sometimes it was different.
Q1029Mm.
ALike, a lot of different ones. I think it was one that he usually kinda used which was a red one.
Q1030Mm.
AAnd it was, like, a back massager though.
Q1031Mm.
AAnd it was, like, huge.
Q1032Mm.
AIt was, like — you know those kinda shaped ones that have, like, the handle and it’s kinda long and you’ve got the big massage things here?
Q1032Mm.
AAnd, yeah, it was like that but it really didn’t feel nice.
Q1034Mm. So - - -
AIt really didn’t. It — ‘cause it’s got, like, spike things on it, like, literally — like, not sharp obviously ‘cause if you’re gunna massage someone - - -
Q1035Mm.
A- - - like, their back - - -
Q1036Mm.
AIt was for your back and your head.
Q1037Mm.
AAnd it was kinda, like, a rubber-ish spike, plastic things - - -
Q1038Mm.
A- - - on them. And he would always, like, kinda use it.[20]
[20]When she says this, she gestures with both hands to between her legs.
Q1039Mm.
AAnd, like, obviously the vibration — like, he thought, ‘Oh, yeah, that will be good.’ Like, it did kind of - - -
Q1040Mm.
A- - - but, I mean, the spikes — it hurt. It actually did kinda hurt.
Q1041 So tell me what he did with it.
ALike, he just held it there… That’s all I can remember. He just held it there, like – ‘cause it was, like, huge, it was like that… He had to hold it like that and he’d just hold it.
Q1044 Could you draw it?
A Yeah, I guess so. Like - - -
Q1045 Just a rough - - -
A Yeah.
Q1046 Yeah?
AIt was — like, it wasn’t spike [sic] like that… I mean, like, it was - - -
Q1048 Yeah, I know.
A - - - rubber.
Q1049 I know what you mean.
A It was like — I’ll do it from, like, the side kinda - - -
Q1050 Yeah, yeah. Just draw it roughly - - -
A So - - -
Q1051- - - so I know what you’re talking about. But it was an actual back massager, was it?
A Yes, yes.
Q1052 OK.
A And so it was kinda, like, that shape. You know - - -
Q1053 Yeah.
A - - - that shape’s from the side.
Q1054 Yeah, yeah.
AAnd then it had these, like — it was two big kinda circles.
Q1055Mm.
ALike — and it had these little rubber things on it.
Q1056 Mm’hm.
AAnd I think in between them were like — were little rubber spike things - - -
Q1057Mm’hm, mm’hm.
A- - - like that. And, yeah, it’d just do that and it was red.
Q1058Mm’hm.
ALike — like those metallic reds.
Q1059Mm’hm.
AAnd, like, it would be, like, out more, like — like - - -
Q1060Mm.
A- - - the — like, the thing.
Q1061Mm’hm.
AAnd, yeah, and then it had the plug thing and the switch would be, like, around here … Like, there.
Q1062 So it plugged in, did it?
A Yes, yes.
Q1063 Yeah.
A Yeah.
Q1064 Into what?
AInto, like, just the normal socket, like, just, like, those ones down there.
Q1065Mm’hm.
AAnd, yeah, and he’d use it on me and it would just hurt.
Q1066Mm.
AQuite, like — and it’s, like — I wouldn’t know what to do ‘cause I would come — I think, like, I would’ve stopped it if I knew what was properly happening. Like, I kinda did.
Q1067Mm.
AI think the only reason is because sometimes it felt nice - - -
Q1068Mm.
A- - - but that wasn’t — I think the reasons was just because I didn’t know what to do at that moment and I was just kinda more in shock. I was just kind of, like, ‘OK, so this feels a bit nice’, but at the same time I — like, I was younger, like, I don’t wanna hurt people’s feelings - - -
Q1069Mm.
A- - - you know.
Q1070Mm.
AAnd I didn’t know what to do, like - - -
Q1071Mm.
A‘cause I loved him still - - -
Q1072Mm.
A- - - and I didn’t wanna hurt — I never wanna hurt anyone’s feelings - - -
Q1073Mm.
A- - - well, like, if I’ve loved them but I know he’s done this wrong.
Q1074Mm, mm.
AAnd I really don’t care right now.
Q1075Mm.
ALike — and he, like — I think I just didn’t wanna hurt him.
Q1076Mm.
AAnd I was just in shock and I didn’t know what to do at those moments.
Q1077 That’s — no, you don’t - - -
A Yeah, like, I don’t know - - -
Q1078 Like, you don’t have to apologise.
A Yeah.
Q1079OK? You know how you said — so you said that it was a — a red back massager?
A Yeah, yes.
Q1080 But you said that there were other ones that he used?
A Yeah, I — I can’t really identify them.
Q1081 Mm.
A I — I actually can’t.
Q1082 OK.
AThey were actually probably proper ones - - -
Q1083Mm.
A- - - like, actual vibrators.
Q1084Mm’hm.
ABut I can’t remember what they were, what they looked like, what colour they were.
Q1085 Where were they kept?
AI think they were kept in his side drawer - - -
Q1086Mm.
A- - - like, next to his bed.
Q1087Mm’hm.
ALike, he’s got the side drawer and it’s the same side drawer - - -
Q1088Mm.
A- - - next to his bed, the exact same — they both got the same - - -
Q1089Mm.
A- - - furniture for a while. Like — ‘cause it’s only been, like, two years so - - -
Q1090Mm’hm.
A- - - obviously — and it would be in there, yeah. And he’s — it’s kind of like that almost, like — like, it’s got a smaller obviously, like at the - - -
Q1091 Yeah, at the top, yep.
A That thing. And then it’s kinda bigger at the bottom - - -
Q1092 Yep.
A - - - but not too - - -
Q1093 Yep.
A - - - big. Like - - -
Q1094 Like, not — yep.
A Yeah.
Q1095 OK.
AAnd the bigger stuff would, like, be put in there, like — and I think he also has, like, normal stuff, like, he had a lot of normal stuff in there but, I mean, sometimes I think the smaller ones would go up the top and it would just be, like — I don’t know. But they — they weren’t plugged in things, they were just, like — you turned it on and - - -
…
Q1097 OK. So how many times do you think he used those on you?
A Probably — I don’t know. Probably 20 — around.
It must be remembered that the complainant was 11 when she said these things occurred with the back massager and the vibrators, and 13 when she participated in the VARE. Notwithstanding that it is unreasonable to expect evidentiary precision from a child about traumatic events that occurred in previous years, it is clear enough that the complainant is here asserting that the applicant used both a large spiky back massager and ‘actual vibrators’ that were kept in a side drawer next to the bed and used on her perhaps 20 times.
The respondent’s submission is that it is apparent that when this passage quoted above is read ‘as a whole’ the words ‘vibrator’ and ‘massager’ were used interchangeably. We disagree with this. We consider the complainant drew a clear distinction between the use of the back massager, which she described with precision, and the ‘actual vibrators’ that weren’t plug-in types (as opposed to the back massager) and which were just ‘turn on’ types.
The complainant’s evidence on the VARE about the presence and use of these items can be contrasted with her answers in the SH, as follows:
[DEFENCE COUNSEL]: You described to the police two things, one of which is using a massager and one of which was using - - - ? - - -Yes.
- - - vibrators but those two are different because you describe the massager as bigger? - - - No, um those — so the massager was basically, the massager — there was only one massager. There was no separate vibrator from what I know of to my knowledge. But there was definitely no vibrator, you know, sexual vibrator used on me - - -
Okay, so - - - ? - - - at the time.
You say that the only thing was the massager? - - - Yes it was, it was like, ah, yes, yes that’s what it was.
Okay? - - - It was the massager that I had drawn.
And that was something that you had seen at your grandparent’s house in a non-sexual way? Like - - - ? - - - Yeah, yes in a non-sexual way yes.
Yes so it would be something that — you’re talking about a massager that would be used in the lounge room in public? - - - Yeah just, yeah just for your back or your legs or anything, yep.
Did you know — did you see where that was kept? Or did you know where that was kept? - - - Um I can’t remember the exact place but it was most likely in their room, usually somewhere but can’t recall.
Okay and you’ve just said now that was the only kind of thing that vibrated. There weren’t separate vibrators? - - - No there wasn’t — yeah that’s correct, there was no separate vibrators.
Okay so when you say that you saw vibrators in the bedroom? - - - M’hmm.
In the little drawers next to the bed. Is that wrong? There were no vibrators? - - - Um from what I can remember I cannot, I cannot remember.
The complainant, on a fair reading, was saying on this occasion that no ‘actual vibrators’, or ‘separate vibrators’ were ever used on her, and that she did not recall ever seeing these items in bedside drawers as she had previously said.
Camille Arbogast gave evidence that there were never any vibrators in her husband’s bedside table. If there were she would know about them. She was not challenged on this evidence.
We consider that the complainant’s accounts cannot be reconciled with each other. No charges relate to the use of ‘actual vibrators’ but the evidence that the applicant used them ‘perhaps 20 times’ was an allegation of uncharged acts of some consequence. Its retraction must impact adversely upon the complainant’s reliability and credibility, notwithstanding the aforementioned allowances that must be made for her age, the lapse in time between the alleged use of the vibrators and her report of them, and the potential impact of any trauma.
High-risk behaviour — charges 2, 3 and 4
It will be recalled that the offending forming the basis for charges 2, 3 and 4 was said to have occurred in the near presence of Camille Arbogast.
Charge 2 alleged that the complainant was in the camp bed/cot beside the applicant and his wife when the applicant reached down and rubbed her vagina. Camille Arbogast was lying beside but turned away from the applicant and was listening to her radio. The complainant said:
I didn’t moan or anything ‘cause my nanna was there still in the thing, like, next to me and, like, with the radio and she was turned the other way. And I was at least quiet and his hand was there and he kept going, like, faster and stuff.
We do not consider this account, by itself, to be inherently improbable. Risky, certainly, but it is not a description which ‘strains credulity’[21] as to compel a rational jury to have a reasonable doubt.
[21]Pell (2020) 268 CLR 123, 165 [125] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
The circumstances surrounding charges 5, 6 and 7 involving penile and oral penetration adjacent to a window (see [14] above) also involved high-risk behaviour, but not to such an extent as to give rise to doubt, for that reason alone, that the conduct in fact ever occurred. This Court’s experience is that sexual offending, including against children, may involve all sorts of high risk behaviour, and courts ought be extremely cautious in concluding that simply because conduct is so risky as to positively invite detection, it cannot be accepted to have occurred at all. It will always be a question of fact and degree.
Charges 3 and 4, said to have occurred in the campervan at Apollo Bay, involved very risky behaviour indeed. There were two beds in the campervan, one along either side of its length, and obviously in quite close proximity to each other. In her VARE, the complainant stated that she and the applicant slept in the same bed, and Camille Arbogast slept in the other bed; Camille Arbogast was ‘kind of deaf’ and would be listening to the radio with earphones in. In this very tight setting, the complainant was quite explicit in describing the offending conduct:
And he was touching himself as well with this hand and then he was also touching me and, like, the same rubbing. And he was rubbing, like, the same place, it was always the same place always. And I didn’t really feel anything, it just felt, like, the same. But it was obviously nice for him. And that went — that rubbing and himself went for at least two minutes. And then I went on top of him so I was on him this time and he was just kinda humping me. And I was kinda just, like, humping him. So, like — but I wasn’t, like — it wasn’t — anything never went inside of me, like, he didn’t try to go inside me, I don’t think. No, he didn’t. Like, his penis was kind of, like flat like this, like, on an angle. And my vagina was like this and he was just kinda, like, rubbing. It was always rubbing never ever inside. Never. And — but it was just rubbing like this and he was obviously like that and I was kind of, like, hugging him, like, an embrace kinda thing like this, like, very tight. Like — and my head was right next to his head and that’s why I could hear him all the time. And I could hear him. And he was — yeah, I — yeah, so I heard him and he was just like [demonstrates audibly] like that. And he — yeah, so he did that and while that was happening, like, we were rubbing and stuff, nothing ever happened where we, like, licked each other or mouth, like, on vagina or penis or anything, hands on anything, it was just, like, me like, on me but, I mean, that was all. Like, nothing like that. And then — so it was just that basically the whole time … And it went — that went on, that rubbing thing, like, I — we also kissed like, French — it was always, like, French kissing. And that went on for at least 10 minutes until he did what he always does which is ejaculate and he did into a tissue.
Camille Arbogast expressly recalled what she said was the single occasion on which the complainant slept in the bed with the applicant in the campervan. Camille moved to the other bed when the complainant got into bed with them and she recalled having difficulty getting back to sleep on that occasion and feeling frustrated. She stated that the applicant was asleep and was not looking at his phone, and that if people were moving on one side of the campervan, the other side would sway. However, she never saw or heard anything of a sexual nature involving the applicant and the complainant.
This evidence was not challenged in any way by the prosecutor.
We consider that the activity in the campervan described by the complainant would have involved quite significant movement by both the applicant and the complainant, who were said to both be naked, French kissing and ‘humping’ each other over a prolonged period. We doubt that this behaviour could have occurred without attracting the attention of Camille Arbogast, particularly if she was having difficulty getting to sleep, which was her unchallenged evidence. By itself, we consider that this incident, as described by the complainant, is inherently improbable: firstly, because we consider it unlikely that Camille Arbogast would have slept through it; and, secondly, because Camille’s close presence would have served to discourage such conduct. This is one of several inherent improbabilities that, in combination, serve to critically undermine the reliability and credibility of the complainant’s account.
A further aspect of the complainant’s evidence has caused us to have substantial reservations about the entirety of her evidence. As discussed, the complainant stated in the VARE and again in the SH that the complainant sexually offended against her on numerous occasions when Camille Arbogast was in the same bed as her and the applicant. The prosecution led evidence from the complainant of ‘lots’ of uncharged acts, similar in many respects to acts alleged on the indictment, that involved this scenario.
In the VARE, the complainant was asked about ‘the very last time it happened’. She replied:
I can’t exactly remember it ‘cause there was so many times. I — I actually can’t really remember but they were all kinda the same. So I’d — I’d say it was just, like, in his bed. So on the left side, he’d always sleep on the left side, my nanna would always sleep on the right side. And I would, like, be sleeping on the cot thing that I had next to — so, like, you know the bed campers? I have it next to his side of the bed. And he’ll, like, touch me down there so my vagina. Not in never in, but only on the outside so, like, rub on my underwear and then inside slowly. And sometimes he would use a vibrator. But most of the time at night it wasn’t … So I’d say no vibrator, I’d just say hand. And he’d, like, get his, like, hand ‘cause I’d be on this side. This hand and he’d just be, like, rubbing and stuff. Then I’d go over to him ‘cause I thought, you know, I didn’t know and, like, he went and bent over and like, kissed me and stuff. So I started kissing him and then he — I went on top of him and he started, like, humping me. And we were both naked. And he started humping me to the point where he’d eventually ejaculate but it would be, like, in a tissue. Or sometimes it would be, like, on my area, my vagina never in. Like, ‘cause I would not let happen [sic]. But, yeah, and, like, so he’d hump me and it’d make him feel good and stuff. It wouldn’t really make — I just didn’t know. And we’d kiss very passionately, like, French kissing. Very passionate. And, yes, that’s basically all that’s happened that last time, I think, and also throughout the whole kinda times.
It is plain that the complainant is describing a pattern of conduct that involved passionate kissing and ‘humping’, while naked, in the marital bed in the presence of Camille Arbogast. The humping was sufficiently prolonged to result in the applicant ejaculating. This occurred regularly, that is, ‘throughout the whole kinda times’.
The complainant was later asked about this series of questions in the SH.
[DEFENCE COUNSEL]: Okay. And you go on to describe this side that you — what you say is, ‘Like, he’d get, like, his hand because I’d be on this side’… ‘His hand would be just, like, rubbing and stuff. And then I’d go over to him because I thought, you know, I didn’t know, like, I went and bent over and like, kissed me and stuff, so I started kissing him. And then he start, like, humping me and we were both naked.’ Now, is that — what you’re describing there, is that that you were in the bed next to him - - - ? - - - Yes.
- - - and he was lying in his bed, is that right? - - - Yes.
Or what that starts. And your nanna was in the bed as well? - - - Yes.
Okay. And so, when you say — this is what you say, that, ‘And we were both naked and he started humping me to the point where he eventually ejaculated, but it would be, like, in a tissue.’? - - - M’hmm.
Now, that last time that you were describing, you say that you were both naked. So did you go to bed naked, or did you take off - - - ? - - - No.
Okay? - - - I took my clothes off, yes.
Okay. So, when you describe, ‘He started humping me’, have you got into bed with him? - - - Yes.
And this is a time that you say that your nanna was still there asleep next to you? - - - Yes.
And you go on to say, ‘We would kiss very passionately, like French kissing, is that what happened on that occasion, that last occasion? - - - Yes.
Because you say, ‘That last time, I think, and also throughout the whole kind of times.’ So now that we’re just talking about that last time, you say that there was passionate kissing as well on that last time? - - - Yes.
You go on to say that this happened lots of times? - - - Yes.
That description that you gave of being in the camp bed next to your grandparents and then getting into their bed, is that when you say this happened lots of times? Did that part happen lots of times as well? - - - Yes, yes.
So, in all of these times that it happened in that bed area at night, was your nanna there as well asleep — or sorry? - - - Yes.
- - - I’ll ask you one question at a time. Was your nanna there as well? - - - Yes.
And that last time, are you able to say how long that was? Was that two minutes or 10 minutes or half an hour, do you know how long that was? - - - From what I can remember, probably every time used to be around, like, 15 to 20 minutes.
On the plain meaning of this evidence, the jury were invited to conclude that:
•Both the complainant and the applicant were in the same bed as Camille Arbogast, the complainant having climbed in from the camp bed.
•Camille Arbogast was asleep.
•Both the complainant and the applicant were naked, the complainant having removed her sleeping attire, described by Camille Arbogast as a ‘onesie’ and underpants.
•Both passionately kissed each other for an extended period.
•The complainant would climb onto the supine applicant or vice versa.
•Both ‘humped’ each other over the course of 10 to 20 minutes to the point that the applicant would ejaculate either into a tissue or on (but not in) the complainant’s vagina.
•All this occurred on a regular basis on ‘lots’ of occasions.
•Never once did Camille Arbogast notice anything unusual or out of order.
In our opinion that combination of circumstances only has to be stated to be seen to defy human experience.
We do not consider that this evidence of uncharged acts can sensibly be interpreted as describing repeated incidents of passionate kissing which might only on (rare) occasions have been accompanied by naked humping. This is just not what the complainant said. The complainant’s evidence was unequivocally that the applicant ‘French kissed’ and ‘humped’ her (or vice versa) to the point of ejaculation in the marital bed while the grandmother slept alongside them on multiple, regular, occasions.
It must be borne steadily in mind that the prosecution did not challenge Camille Arbogast’s evidence at all. This evidence was clearly unfavourable to the prosecution case, and yet no application under s 38 of the Evidence Act 2008 was made to challenge or dispute the evidence that Camille Arbogast gave that she was a light sleeper, was up frequently during the night to go to the toilet, would wake up at noises and particularly movement in the bed, and at no stage saw or heard anything of a sexual nature.
In our view the complainant’s assertion that she and the applicant would always check to see that Camille Arbogast was asleep does little to ease the strain on the credibility of the complainant’s account.
In the respondent’s written case, it was contended as follows:
[Camille Arbogast] gave evidence she was a light sleeper. However the complainant stated that [Camille Arbogast] was deaf and snored and the complainant’s brother [Eric Arbogast] stated [Camille Arbogast] was a deep sleeper. It was open to the jury to accept the evidence of [Amelia Arbogast] and [Camille Arbogast].[22]
[22]We presume the respondent mistakenly inserted Camille Arbogast into this sentence, and intended to say Eric Arbogast.
In our view, it is by no means clear that the 13-year-old Eric Arbogast was actually saying that his grandmother was a deep sleeper, or rather that that was what the complainant told him about the circumstances of the offending conduct. Moreover, the written case contains an invitation to reject Camille Arbogast’s evidence in preference to that of the complainant and her brother in circumstances where the prosecutor had eschewed the opportunity to seek leave to cross-examine her on this issue.
Indeed, the prosecutor in his final address seemed to wish to distance himself from this incredible evidence of uncharged acts, or at least to try to massage it into a more palatable form:
[PROSECUTOR]: I mentioned before that at the start of this VARE, the interview, this statement, this police statement from [the complainant], she described — she talks about the camp bed. She mentions it quite early on in the statement. That’s when she’s saying that, I think, there were many times that things happened and she mentions the camp bed. She introduces immediately her own active involvement in things, she describes her getting on top of him and then being naked in that early description that is not the subject of a charge.
It's a matter for you when you read that whether it introduces an occasion that seems incredible, that she can be right there on the bed next to Nanna, naked. It’s a matter for you but what I would say to you is that in that early description she makes it plain that she’s describing in a rolled-up sort of fashion, describing lots of things that used to happen to her. She mentions the camp bed certainly but she’s describing a lot of things that then get unpacked in the later description of detailed occasions. Whether or not it took place on the bed next to Nanna when the camp bed was there. Well, the prosecution is not seeking to prove that, that’s not one of the charges.
The prosecutor was inviting the jury to conclude, contrary to the complainant’s direct and repeated evidence, that these naked, prolonged and highly active instances of sexual engagement occurred, not in the marital bed, but in the adjacent camp bed. He made no effort to avail himself of s 38 of the Evidence Act 2008 to challenge the relevant evidence from either the complainant or her grandmother, but constructed this hypothesis in his final address to mitigate the damage to the complainant’s credit that would necessarily arise from this evidence. There was no evidentiary basis whatsoever for the construction of this hypothesis. To the contrary, it was Camille Arbogast’s evidence that the camp bed was only used for a very short period of time, certainly not long enough to accommodate the many episodes of this form of offending alleged by the complainant.
In the circumstances that we have outlined above, we consider that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt. We consider that the combined effect of the complainant’s varying accounts of the use of ‘actual vibrators’, and more particularly of the activities alleged to have occurred beside or in the near presence of her grandmother both in the marital bed and in the campervan is to cast a real and unresolvable doubt over the entirety of her evidence. While some of this evidence relates to uncharged acts, that evidence of repeated sexual acts that were ‘all kinda the same’ frames the evidence the complainant then gave about specific charged acts. It describes a pattern of behaviour that is at the core of the range of offending conduct that is alleged. It cannot be simply put to one side as relevant only to uncharged acts.
In M v The Queen,[23] the majority of the High Court held that when evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.[24] If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, the appellate court is bound to set aside the verdict.[25]
[23](1994) 181 CLR 487; [1994] HCA 63.
[24]M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.
[25]Ibid.
In M, one of the factors referred to by the majority as giving rise to the need for careful scrutiny by the court was ‘the improbability of the appellant acting as he was alleged to have done in the circumstances prevailing on that night, namely, on a squeaky bed in an unlocked bedroom which was only a short distance from, and within hearing distance of, another bedroom occupied by the appellant’s wife, in a fully occupied, small house.’[26] Happily, since 1994 when M was decided, courts and juries have developed a much deeper understanding of the circumstances in which the sexual abuse of children may occur, including as to the frequency of ‘high risk’ and ‘brazen’ conduct by offenders, and of the difficulties complainants commonly experience in recalling and reporting the detail of the offending. Nonetheless, M makes clear, as does Pell, that the appellate court’s review of the record is not limited to identifying inconsistencies and inadequacies in the evidence. It extends to the consideration of improbabilities which, when viewed in the context of the evidence as a whole, are sufficient to create a
reasonable doubt experienced by the court, being a doubt which a reasonable jury ought also to have experienced.
[26]Ibid (emphasis added).
In carrying out its task, the appellate court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility for determining guilt or innocence. A jury, bringing together the experience and common sense of 12 thoughtful and diligent members of the community, will ordinarily be best placed to assess whether evidence is so improbable as to raise a reasonable doubt of proof of guilt, and it will be an unusual case when an appellate court is justified in intervening on this basis. However, we consider that this is such a case.
We do not ignore the various complaints made by the complainant which are capable of demonstrating consistency of account, however the source of those complaints, of course, is the complainant herself. The prosecution case rested almost entirely on her reliability and credibility, and for the reasons we have set out, we consider that a rational jury must have entertained a reasonable doubt about the entirety of her evidence, and thus the prosecution case itself.
Ground 3
In view of our conclusions on ground 1, it is unnecessary to give detailed consideration to ground 3 which complains that the prosecutor invited the jury to reject Camille Arbogast’s evidence on whether or not a DVD could be played through the television at the tanning salon. It will be recalled that the complainant stated that a DVD was inserted ‘in the TV slot’, however Camille Arbogast appeared to state that the DVD could not be played through the small television, although, as we have observed, we do not regard her evidence to be definitive on this issue. Given what she appeared to be conveying, it would have been prudent for the prosecutor, using s 38, to have sought leave to cross-examine Camille Arbogast on this discrete issue, placed before her the complainant’s relevant evidence, and invited her agreement or disagreement with that evidence. Beyond these remarks, it is unnecessary to say anything further about this ground.
Conclusion
Leave to appeal under ground 1 is granted, the appeal is allowed, and the verdicts on charges 1 to 8 will be set aside and acquittals entered in their place.
McLEISH JA:
The Court is invited to find the verdicts against the applicant unreasonable or unable to be supported having regard to the whole of the evidence. Much of the background, together with the applicable law, is helpfully set out in the reasons of Emerton P and T Forrest JA. I have, however, come to a different conclusion. For the reasons that follow, I am not persuaded that the jury ought to have entertained a reasonable doubt about the applicant’s guilt.
The High Court’s decision in Pell makes it clear that an appellate court undertaking this kind of inquiry must start from the assumption that the jury regarded the complainant’s evidence as both credible and reliable.[27] The Court must then examine that evidence by reference to the whole of the trial to see whether it was none the less affected by some inconsistency, discrepancy or other inadequacy, or whether there was some other evidence, such that the jury ought to have doubted the applicant’s guilt.
[27]Pell v The Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).
In seeking to establish that the verdicts were unreasonable or could not be supported having regard to the whole of the evidence, the applicant relied on a combination of features of the case to establish the necessary ‘inadequacies’ or ‘other evidence’.
I agree with Emerton P and T Forrest JA that several of the matters on which the applicant relied were of little significance. In particular, I agree that the complainant’s description of the applicant’s wedding ring was of no real importance and that the gist of her evidence in that regard was that the offending conduct caused her pain. I also agree that the discrepancies between the complainant’s evidence of the showing of pornography in the tanning salon and the evidence of her mother and grandmother about the use of the television in the salon fall well short of showing that the complainant’s evidence on that subject was false.
I agree as well that the complainant’s accounts of the high-risk offending in charges 2 (the camp bed or ‘cot’ incident in the presence of the complainant’s grandmother) and charges 5 to 7 (the ‘couch’ incident alleged to have taken place adjacent to a window where the acts could be seen if anyone passed) are not of themselves so unlikely or improbable that the jury must have doubted that this offending occurred.
Emerton P and T Forrest JA take a different view in respect of the evidence regarding charges 3 and 4 (the campervan incident, again in the grandmother’s presence), the uncharged acts and the vibrators, and of the cumulative effect of the matters on which the applicant relies. It is necessary to explain my reasons in respect of each of those matters before returning to an assessment of the whole of the evidence.
‘Campervan’ incident
Emerton P and T Forrest JA consider the ‘campervan’ incident to be inherently improbable and the complainant’s evidence in respect of that incident, in combination with other inherent improbabilities, to cast a real and unresolvable doubt over the entirety of her evidence. I respectfully disagree.
On the complainant’s account, her grandparents were in separate beds in the campervan. Because of the proximity to the ocean ‘all you could really hear’ was the complainant’s grandmother snoring, together with the sounds of birds and the ocean, with ‘waves crashing and everything’, especially on the grandmother’s side of the campervan where a window covering could be rolled up. The complainant said she was in the same bed as the applicant, on the opposite side of the room to her grandmother’s bed. The applicant started to ‘rub’ the complainant but she never made any sound. Her grandmother was sleeping, which they ‘always checked’. The applicant ‘touched himself’, while also rubbing the complainant, for at least two minutes. The complainant then ‘went on top of him … and he was just kinda humping me … and I was kinda just, like, humping him’. They were in some kind of ‘very tight’ embrace and their heads were right next to each other. They also engaged in ‘French kissing’ for at least 10 minutes and the activity continued until the applicant ejaculated into a tissue. The complainant’s detailed account of what the applicant then did with the tissue is set out later in these reasons.
It was no secret that the complainant was sleeping in the same bed as her grandfather, and that he slept naked. The opportunity for offending without detection was much greater as a result, because those circumstances did not need to be concealed. It was correspondingly less risky, or inherently unlikely, for the applicant to offend in the way alleged than it might otherwise have been.
While still undoubtedly flagrant and risky, the alleged conduct is said to have taken place in a separate bed, while the complainant’s grandmother was asleep and snoring, against a background of ocean noise. The complainant and the applicant are said to have been locked in a tight embrace, albeit ‘humping’, which was also described in terms of ‘rubbing’. Granted that the campervan may have been prone to rocking as a result of movement within it, the conduct described is not necessarily especially vigorous. In my view, there is nothing inherently improbable in the complainant’s grandmother remaining asleep despite any rhythmic swaying of the campervan that might have taken place in the circumstances the complainant described.
For these reasons, in my view the conduct the subject of the ‘campervan’ charges was not so improbable that it was not reasonably open for the jury to accept the complainant’s evidence on that subject.
Evidence of uncharged acts
Turning next to the uncharged acts, the applicant contends that the complainant’s evidence of sexual conduct with which the applicant was not charged was ‘incredible’ or ‘glaringly improbable’.[28] It is said that the evidence was so incapable of being accepted that it must bear adversely on the credibility or reliability of the complainant’s evidence as a whole. Sections 44F and 44G of the Jury Directions Act 2015 make it clear that, if the jury had a doubt about part of the complainant’s evidence, that did not mean that they were required to take that doubt into account in evaluating the remainder of her evidence. However, they of course remained free to do so.[29]
[28]Fennell v The Queen (2019) 93 ALJR 1219, 1233 [78], [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); [2019] HCA 37.
[29]Mathieson v The Queen [2021] VSCA 102, [54] (Priest, Kyrou and T Forrest JJA).
The issue in this context is not whether the jury must have had a doubt about the evidence of uncharged acts. The jury could have convicted the applicant without reliance on that evidence at all. And as senior counsel for the respondent pointed out, in order to rely on the evidence the jury did not need to be satisfied beyond reasonable doubt but only on the balance of probabilities.[30] The question is instead what effect the complainant’s evidence of uncharged acts must have had on the jury’s assessment of her evidence as a whole.
[30]DPP v Martin (2016) 261 A Crim R 538, 553–5 [97]–[99], 558 [113] (Redlich, Weinberg and McLeish JJA); [2016] VSCA 219. See also Sadler v The Queen (2008) 20 VR 69, 87–8 [62]–[63] (Nettle, Redlich and Dodds-Streeton JJA).
For that reason, it would not be enough for this Court to conclude that the evidence of uncharged acts was fanciful, or incredible, or even glaringly improbable, in order to uphold this proposed ground of appeal. It would need to take the extra step of reasoning, from that conclusion and any other inadequacies in respect of her evidence, that doubt attached to her evidence of the offending conduct.
It is therefore necessary to begin the analysis of this part of the argument by identifying the evidence said to be fanciful, incredible or glaringly improbable.
In undertaking that task, it must be borne in mind that the complainant gave evidence in a manner which did not always distinguish between a particular occasion, the subject of a charge, and the general run of sexual conduct which she alleged. It is plain from the transcript that she found it difficult to describe individual occasions without veering off into descriptions of what happened at other times, so that her evidence often appears to take the form of a summary.[31] The questioner was ultimately able to get the complainant to focus on specific events and describe them in some detail (of which the ‘campervan’ incident already described is an example). The general evidence about the overall course of offending was, however, much more lacking in specificity. And as will be seen, the evidence of uncharged acts itself allowed for variations, and other evidence pointed to different offending that had other recurring features.
[31]That appearance is sometimes misleading because the complainant at times used the words ‘would, ‘he’d’ and ‘I’d’ when describing a single event. The ‘tanning salon’ incident affords a good example:
Q191Mm.
A- - - and he’d start rubbing me and stuff - - -
Q192Mm.
A- - - and while he was still doing to himself. And then he’d go – like, he’d let go of me, like, take his hand out, I think, yeah. And then he’d go and he’d grab a tissue, like – ‘cause we had the tissue box, like, in the corner.
Q193Mm.
AHe’d grab a tissue and then he’d ejaculate into it - - -
Q194Mm.
A- - - and then he would put it into the bin.
Q195Is this the last time – this is the time – like, the one time you’re talking about?
AYeah, one time.
Turning to the evidence which the applicant particularly impugns, the complainant was asked at the outset of the VARE to tell the questioner about ‘the very last time that something’s happened’ and to do so in as much detail as she could without leaving anything out. In response, the complainant said, ‘I can’t exactly remember it … ‘cause there was so many times. … I actually can’t really remember but they were all kinda the same’.
The complainant then gave a description of what happened:
A So I’d — I’d say it was just, like, in his bed.
Q40 Mm.
ASo on the left side, he’d always sleep on the left side, my nanna would always sleep on the right side.
Q41 Mm’hm.
AAnd I would, like, be sleeping on the cot thing that I had next to — so, like, you know, the bed campers?
Q42 Mm.
A I have it next to his side of the bed.
Q43 Mm’hm.
A And he’ll, like, touch me down there - - -
Q44 Mm.
A - - - so my vagina.
Q45 Mm.
A Not in - - -
Q46 Mm.
A - - - never in, but only on the outside so, like, rub - - -
Q47 Mm.
A - - - on my underwear and then inside slowly.
Q48 Mm.
A And sometimes he would use a vibrator.
Q49 Mm’hm.
A But most of the time at night it wasn’t.
Q50 O.K.
A So I’d say no vibrator, I’d just say hand.
Q51 Mm.
AAnd he’d, like, get his, like, hand ‘cause I’d be on this side. This hand and he’d just be, like, rubbing and stuff. Then I’d go over to him ‘cause I thought, you know, I didn’t know and, like, he went and bent over and, like, kissed me and stuff. So I started kissing him and then he — I went on top of him - - -
Q52 Mm.
A - - - and he started, like, humping me.
Q53 Mm.
A And we were both naked.
Q54 Mm.
AAnd he started humping me to the point where he’d eventually ejaculate - - -
Q55 Mm.
A - - - but it would be, like, in a tissue.
Q56 Mm.
A Or sometimes it would be, like, on my area, my vagina - - -
Q57 Mm.
A- - - never in. Like, ‘cause I would not let happen. But, yeah, and, like, so he’d hump me - - -
Q58 Mm.
A- - -and it’d make him feel good and stuff. It wouldn’t really make — I just didn’t know.
Q59 Mm.
A And we’d kiss very passionately, like, French kissing.
Q60 Mm.
AVery passionate. And, yes, that’s basically all that’s happened that last time, I think, and also throughout the whole kinda times.
Q61 O.K. ‘Cause — yeah. So you’re saying - - -
A Yeah.
Q62 - - - it’s happened lots of times.
A Yeah.[32]
[32]Emphasis added.
It is tolerably clear that, in this evidence, the complainant appears to be giving an account of a typical instance of sexual conduct, before adding that ‘it’ happened ‘lots of times’ and is what happened ‘through the whole kinda times’. As explained further below, however, it is wrong to treat this as evidence of a precise or ‘routine’ kind of offending, albeit that the complainant is plainly asserting a wider course of offending of some description. The questioning then proceeds to isolate particular incidents, most of which bear some resemblance to the incident she described, but none of which corresponds to it precisely. For example, the ‘cot’ incident (charge 2) corresponds to the actions described at the start of the above passage, and the ‘humping’, ‘French kissing’ and ejaculation into a tissue are all features of the ‘campervan’ incident.
The evidence set out above itself acknowledges variations in the conduct. Sometimes the applicant would use a vibrator but ‘most of the time at night’ he just used his hand ‘so I’d say no vibrator’. Sometimes the applicant would ejaculate in a tissue, sometimes he would ejaculate on the complainant’s vagina. It is therefore clear that, despite saying it happened ‘lots of times’ and they were all ‘kinda the same’, the complainant is not describing an unvarying or even regular pattern of specific conduct. She is describing things that happened more than once, but not necessarily all together. Her evidence reads as a description of a single occasion interspersed by a stream of recollections of a history of sexual conduct by the applicant.
This is borne out by the way in which the complainant tended to make general observations while giving evidence of other, different, sexual conduct. So, when she later gives evidence about the ‘couch’ incident, she describes events in vivid terms which not only differ fundamentally from the earlier account but suggest that the overall course of sexual conduct included some of those differences:
Q570 But we’re talking about this one time?
A Yes, yes, yes.
Q571 Yeah.
A Yeah, sometimes, like, I mean, some of the times.
Q572 Yep.
A And then he’d get up, like back again - - -
Q573 Mm.
A- - - and he’d, like, hump me again and then he’d — he would, like, ejaculate onto me.
Q574 Mm.
A And it would mostly be on me, like, on my vagina.
Q575 Mm.
AAnd I’d hate it because it’s warm and it’s – it’s bad and I didn’t like it and I walked – I was, like, waddling. I was like, ‘Do not touch me, do not touch me.’ And I was like, you know – I was like, waddling and ‘cause I was waddling to their, like, bathroom to clean myself.
Q576 Mm.
A I really didn’t like it when he did that.
Q577 Mm.
A I really didn’t.
Q578 O.K.
A ‘Cause it just was – it just felt weird and disgusting - - -
Q579 Mm, mm.
A - - - and I really didn’t like it, yeah.
Q580 And then what happened?
A Then I washed myself and we – I had a shower on my own - - -
Q581 Mm.
A- - - and he had a shower. We washed our hands and stuff like that and we just pretended it never happened.
Q582 Mm.
A - - - again. We always did that.
…
Q599 Mm.
A I was just waddling like this.
Q600 Mm.
AAnd, yeah, and it was just on me and I’m like, ‘Ew’, and I just got my hand, like, I put water.
Q601 Mm.
ALike, I wasn’t in the shower. I just went into the bathroom and I went to the tap. I literally – and I went like that - - -
Q602 Mm.
A - - - or I think I had a towel, a – no, I had a tissue.
Q603 Mm.
AI always used like – no, toilet paper, I use toilet paper and I just literally, like, kind of – I didn’t wet it but, like I opened the toilet as fast as I could. I was like that and I grabbed the toilet paper, I wiped it and I could still feel it on me and it was sticky and I (demonstrates audibly) hated that.[33]
[33]Emphasis added.
One obvious difference is that the complainant does not link this description to the presence of her grandmother at all. Plainly, she is describing events that took place in other circumstances which included going to the bathroom and, at least sometimes, showering. In the general opening description set out earlier, the complainant mentions being ejaculated on ‘sometimes’ but says nothing about going to the bathroom or showering. This highlights the difficulty in determining exactly what sexual conduct the complainant was asserting in that opening description took place ‘lots of times’.
As noted, none of the charged acts reflects all the ingredients of the complainant’s initial description. It is clear, however, that the complainant was asserting ongoing sexual conduct on the part of the applicant.
The applicant submits that the complainant was saying that, on multiple occasions, the applicant had touched her sexually while she was in the ‘cot’ next to her grandparents’ bed, after which she got into the bed, sometimes naked, and he ‘humped’ her until he ejaculated, during which time they kissed ‘very passionately’. By inference, at least, the complainant’s grandmother was in the bed at these times.
However, in my view that interpretation is not to be preferred. It treats the complainant’s evidence as being more exact and explicit than it actually is. It depends on an understanding that, when the complainant said the incident she described happened ‘throughout the whole kinda times’ and ‘it’s happened lots of times’, she was referring to a precise, recurring course of conduct.[34] When the evidence is read in context, and especially by reference to the cross-examination, it is clear that she was not.
[34]Reference has already been made to the complainant’s idiosyncratic use of the words ‘would’, ‘he’d’ and ‘I’d’, used numerous times in the VARE answers set out at [113] above: n 31.
At the special hearing, the cross-examiner returned to this evidence and asked about ‘the last time that something happened’ and whether the complainant was still sleeping in the cot next to her grandparents’ bed. She said she could not remember. Immediately it is apparent that, at least on the ‘last’ occasion which the complainant was describing, she may not have been in the cot. The following evidence is critical and it is necessary to read it closely, bearing in mind that it is said to confirm that, on multiple occasions, the complainant got into her grandparents’ bed naked, where the applicant ‘humped’ her until he ejaculated, in his wife’s presence.
The complainant confirms that, in the account she gave of the applicant ‘humping’ her while they were both naked, until he ejaculated in a tissue, her grandmother was also in the bed, ‘asleep’.[35] After also confirming that there was passionate kissing ‘on that last time’, the complainant was asked:
[35]There is limited evidence that the complainant’s grandmother used a radio with an ear piece to help her get to sleep, but the complainant’s evidence was consistently that she was asleep, not listening to the radio, when sexual conduct took place in her presence.
You go on to say that this happened lots of times?
to which she answered ‘Yes’. It is not entirely clear what ‘this’ may have constituted. In context, this question appears to be directed to the ‘passionate kissing’, but it could also mean the whole scenario. The evidence continued:
That description that you gave of being in the camp bed next to your grandparents and then getting into their bed, is that when you say this happened lots of times? Did that part happen lots of times as well?---Yes, yes.
So, in all of these times that it happened in that bed area at night, was your nanna there as well asleep — or sorry - - - ?---Yes.
- - - I’ll ask you one question at a time. Was your nanna there as well?---Yes.
And that last time, are you able to say how long that was? Was that two minutes or 10 minutes or half an hour, do you know how long that was?---From what I can remember, probably every time used to be around, like, 15 to 20 minutes.
Okay. Do you say that you don’t remember specifically that time?---M’hmm, yes.
HER HONOUR: Hang on ... That question’s confusing.
[DEFENCE COUNSEL]: I’ll rephrase that.
HER HONOUR: Yes.
[DEFENCE COUNSEL]: Thank you, Your Honour. I’m sorry, … I’m trying to be clear, and I’m not doing a very good job? - - - Okay.
We’ve talked about that last time. How long did that occur — how long was it going on for, for that last time? - - - Um, like I said, around 15 to 20 minutes.
And you say — do you say it happened often, is that correct? - - - Yes.
And that description of you taking your clothes off and getting into the bed, that would happen — you say that would happen on all of these occasions? - - - Not all.
Okay. So there was times that that didn’t happen? - - - Yes.[36]
[36]Emphasis added.
In this evidence, the complainant confirmed that ‘that part’, being her getting into her grandparents’ bed out of the camp bed, also happened ‘lots of times’, and that in ‘all of these times that it happened in that bed area at night’, her grandmother was asleep. It is clear enough that the ‘it’ referred to is sexual conduct, said to have happened ‘often’ and to have lasted 15 to 20 minutes. But the conduct is only generally identified. The complainant said that she would not always undress and get into the bed. She was not asked whether, when she did get into the bed ‘lots of times’, the applicant ‘humped’ her and ejaculated, into a tissue or onto her vagina, or at all. The evidence is distinctly lacking in detail.
As noted earlier, the gravamen of the applicant’s argument in this context is that the complainant claimed that the applicant frequently ‘humped’ her to ejaculation while they were both naked and kissing passionately in the matrimonial bed with her grandmother asleep next to them.
In my view this evidence falls well short of an account of frequent incidents in which the complainant moved from the cot by the grandparents’ bed into their bed and then, while naked, was ‘humped’ by the applicant to the point of ejaculation. It is only capable of that characterisation if one assumes that the ‘it’ which happened was the series of events which happened the ‘last time’, and not just the ‘passionate kissing’ which, apart from two references to ‘humping’ in the context of the ‘last occasion’, is the only clearly identified conduct mentioned by the cross-examiner. It is also only capable of that characterisation if the evidence that the complainant did not always undress and get into the bed is put to one side. It is convenient to refer to other aspects of the trial before returning to this question.
The evidence of the complainant’s brother supports the view that she had said that the applicant had frequently engaged in sexual conduct with her, without saying what it involved, next to their grandmother while she slept. Paradoxically, reliance on that evidence of ‘complaint’ might tend to bolster, rather than diminish, the credibility of the complainant. But it also justifies treating the complainant’s evidence as alleging multiple cases of sexual conduct, of some kind, in the bed while her grandmother was asleep.
At the trial, the prosecutor referred the jury to the VARE evidence and invited them to conclude that the complainant was describing ‘lots of things that used to happen to her’ that ‘get unpacked in the later description of detailed occasions’. He noted that the prosecution was not seeking to prove sexual conduct in the bed next to the complainant’s grandmother while the camp bed was there. The prosecutor there appears to be inviting the jury to treat the evidence concerning the camp bed as referring to one particular occasion. But in any event, the prosecutor was right to say that the jury could decide for themselves whether the evidence was ‘incredible’. He was also correct to say that they need not accept the evidence in order to convict.
Early in her address to the jury, defence counsel suggested that the complainant’s evidence is ‘wholly unbelievable’. She added:
Most of these allegations occur right next to her sleeping grandmother.
This reference can be taken to encompass charges 2, 3 and 4 (the ‘cot’ and ‘campervan’ incidents), as well as the uncharged conduct. It does not accurately describe the other charges.
Counsel returned to the matter shortly before addressing the individual charges. She said:
Now, when you first heard the charges, you may have imagined a grandfather sneaking around in to a granddaughter’s room at night, demanding silence, making threats that if she told anyone, and when you listen to the evidence that’s not the case at all, and that’s when you might have thought, what humping right next to his wife, her grandmother, doesn’t that sound unlikely.
It is later clear that counsel is inviting the jury to treat the evidence of the complainant as describing multiple, regular occasions of uncharged conduct. She said:
Now, the prosecution have suggested to you that her nanna did sleep through all these things on the many, many occasions that this happened, and I’d be suggesting to you that that is wholly unlikely. And she was adamant that [if] she’d heard anything or seen anything, she would’ve said something.
And for you to accept [the complainant’s] story, you would have to accept, on regular occasions, that [the complainant] and her grandfather would get on top of each other, do actions simulating sex to the point of ejaculation without waking up [her grandmother], that they would use the use of a massager and, on her original statement, a vibrator in the caravan, in the bedroom, in the bed, not once, but on multiple occasions, so many times that [the complainant] can’t distinguish between them all without waking up [her grandmother] ever.
I mean, [the grandmother’s] evidence is that she was a light sleeper, that the movement in the [bed] would regularly wake her up and that [the complainant] sleeping in the bed would wake her up.
This account invited the jury to read a very great deal into the complainant’s evidence set out above, and to interpret it as alleging a consistency of conduct which, properly understood, it did not assert. As has been seen, the complainant described a particular occasion in the VARE which roughly met counsel’s description (although she did not allege the use of a massager or vibrator in the grandmother’s presence, on multiple occasions or at all). She then said that was what happened on that occasion ‘and also throughout the whole kinda times … it’s happened lots of times’. In the special hearing she clarified to some extent what she meant by this, but was asked predominantly about kissing, with no specific reference to regular ‘humping’ or ejaculation. It was not put to the complainant that her grandmother was a light sleeper, nor was she asked to explain how it was that she did not wake.
The judge pointed out to the jury, in her charge, that the complainant had given evidence that sexual misconduct happened so many times that she could not remember. The judge told the jury that the complainant had given evidence that it happened ‘in the cot on the camp bed … many times’. That was not an accurate summary of the evidence, but no complaint is made on that account. Nor is any issue taken with the judge’s directions as to the possible use that could be made of this evidence.
After the jury retired, the prosecutor raised with the judge whether a direction should be given under s 27 of the Jury Directions Act that the case must not be decided based on prejudice arising from the evidence of uncharged acts. Defence counsel indicated that no such direction was sought, and none was given. It is not now suggested that the jury might have reasoned in the way forbidden by a direction of this kind. It is contended, consistently with the way the case was run at trial, that the evidence of uncharged acts should not be accepted, and that it was of such a nature that, taken together with the other matters relied on, the jury must have doubted the whole of the complainant’s evidence.
In my opinion, the jury was entitled to treat the complainant’s evidence of uncharged acts as describing ongoing sexual misconduct in terms much less specific than the misconduct described by defence counsel. The complainant was recounting an ongoing sexual relationship without claiming precise recall of all its details beyond the specific occasions she described. The evidence of the specific offences charged makes it clear that she was alleging that a variety of sexual conduct had taken place, in different locations and at different times of day. She did not assert a pattern of routine behaviour. Her evidence of uncharged acts must be understood in that light. The jury was, however, entitled to treat the complainant’s evidence as describing occasions of passionate kissing, perhaps accompanied by ‘humping’, whether or not to the point of ejaculation, some of which took place while she was naked and at least one of which occurred after she moved from the cot adjacent to her grandparents’ bed into their bed, while her grandmother was asleep. The jury could further conclude that the complainant asserted that similar conduct took place when she was in the bed and in her grandmother’s presence, as it was accepted she often was, whether or not the cot was present at the time. But the jury need not have taken the complainant to be saying that the applicant ‘humped’ her to the point of ejaculation while his wife slept in the same bed, on multiple, regular, occasions.
If the jury approached the matter in this way, which in my view is a fair characterisation of the complainant’s evidence, then the complainant was describing conduct that was extraordinarily brazen and risky. Unfortunately, however, brazen sexual misconduct involving risk-taking is not uncommon. In its written case, the respondent pointed to the example of Robbins v The Queen,[37] in which it was held to be open to accept the evidence of a teenage complainant that he was anally penetrated ‘numerous times’ in a tent crowded with sleeping adults.[38] The Court there held that it should be very cautious in substituting its own view for that of a jury as to what lies credibly within the realm of human experience.[39]
[37](2017) 269 A Crim R 244, 250 [25]–[26], 262–3 [136]–[139] (Tate and Whelan JJA and Macaulay AJA); [2017] VSCA 288 (‘Robbins’).
[38]See also Choudhary v The Queen [2013] VSCA 325, [18]-[20], [34] (Priest JA, Maxwell P agreeing at [1], Lasry AJA agreeing at [60]); Cavanaugh (a pseudonym) v The Queen [2021] VSCA 347, [162] (Kaye JA), [249] (Walker JA, Maxwell P agreeing at [6]).
[39]Robbins (2017) 269 A Crim R 244, 263 [139] (Tate and Whelan JJA and Macaulay AJA); [2017] VSCA 288; see also Smith v The Queen [2022] VSCA 129 [34] (Maxwell P, T Forrest and Sifris JJA); Lindholm v The Queen [2022] VSCA 141 [98] (Priest, Kyrou and T Forrest JJA).
Once it is established that the complainant’s evidence did not plainly state that the applicant ‘humped’ her to the point of ejaculation on multiple, regular occasions while both were naked in the bed next to the complainant’s sleeping grandmother, the improbability said to attach to her evidence is markedly reduced. When her evidence of what happened while her grandmother was asleep in the bed is understood to refer to occasions of passionate kissing and even ‘humping’ (of some kind), not always while naked and not necessarily to the point of ejaculation, it is more readily accepted.
Bearing in mind that the jury did not need to be satisfied of this evidence beyond reasonable doubt in order to accept it, I do not consider it to be so improbable that there were times when the applicant was able to perpetrate such conduct without waking his wife that the complainant’s evidence on this subject ought not to have been accepted. These occasions would be examples of risky and brazen conduct, like the ‘campervan’ incident the subject of charges 3 and 4 which was relevantly the same except that it involved a separate bed nearby. On the complainant’s account, the applicant was able to offend in the kind of way I have described while being careful not to disturb his wife. In my view, that evidence is ‘credibly within the realm of human experience’.[40]
[40]Ibid. For a case of less elaborate offending in the same bed as a ‘light sleeper’ spouse, see BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48.
The fact that the complainant’s grandmother gave unchallenged evidence that she was a light sleeper does not mean that the jury must have rejected the complainant’s evidence of the uncharged conduct in her presence. The jury was faced with an assessment of the evidence that the grandmother slept lightly — and was easily awoken by the complainant’s presence in the bed — and the complainant’s evidence that she was asleep and, in some instances, snoring, when the sexual conduct occurred, and that she and the applicant ‘always checked’ that was the case. In my view it was open to the jury to accept that, on the occasions when sexual activity occurred in the bed, the complainant’s grandmother was not aware of it. As already noted, on any view the complainant was often in the bed, while the applicant was naked, and she moved around in a way that could disturb her grandmother’s sleep. That is not inconsistent with the complainant’s evidence that she and the applicant were careful to ensure her grandmother was asleep when they engaged in sexual activity in her presence.
The complainant’s evidence in that regard was not that her grandmother was a heavy sleeper, it was that she snored and that she and the applicant were careful not to wake her. The grandmother’s evidence was not an insuperable obstacle to accepting that account. She stated that she was a light sleeper and easily woken. She said that, if she snored, she would have expected some women she had once shared a dormitory with to have told her. Consistently with the notion that her grandmother was not a heavy sleeper, the complainant acknowledged, in the campervan context, that there was an enhanced risk of her waking. She referred to her grandmother’s presence when she described what the applicant did with the tissue on that occasion:
Q877 Mm.
AAnd he kinda put it in there, he just dropped it, and I think he got up. ‘Cause it was very loud to get up, like - - -
Q878 Mm.
A- - - you’d hear your footsteps, but we didn’t really care. Like, my nanna didn’t care ‘cause obviously she’s seen him naked, like — you know.
Q879 Mm.
AAnd it wouldn’t really matter now if my nanna woke up ‘cause it was very loud ‘cause the footsteps — you know, it’s a caravan, it will make sound - - -
Q880 Mm.
A- - - and he was very heavy as well. Like, he’s not fat but, I mean — you know. And he’s — so he got up and he kinda washed his hands and he always wears glasses so he couldn’t really see.
Q881 Mm.
AAnd he kinda knocked into, like, the table. There was, like, a pull out table thing.
Q882 Mm.
AAnd he — he washed his hands and then I — then he dried them on the tea towel - - -
Q883 Mm.
A - - - that was sitting right next to the sink - - -
Q884 Yeah.
A - - - on this little hanger thing.
Q885 Yeah.
AAnd he walked back, like, he was kinda, like, feeling his way through.
Q886 Mm.
A Then he … back and lied into the bed - - -
Q887 Mm’hm.
A- - - the campervan, that thing — bed. And I was kind of sleeping already, like, I was just, like, turned to this side.
Q888 Yeah.
AAnd I was just kind of, like, this, like, had my eyes closed and he’s like, ‘Kiss me here,’ or something.
Q889 Mm.
A Like, he always said, ‘Thank you’. Like - - -
Q890 O.K. So he always said ‘thank you’.
AYeah, he was always kind of, like, ‘Thank you,’ or — he always kinda said, ‘Thank you’ or just didn’t really say anything.
Q891 Mm.
AHe was just kinda like, ‘Oh, so’ — and then he’d go onto the normal conversation if — if that was in the day, but it was mostly at night.[41]
[41]Emphasis added.
The complainant’s evidence was therefore that there was a risk of waking her grandmother and that there were times when she and the applicant were careful not to do so, and times when they were less concerned.
It is significant that at no point was the complainant asked to describe what she meant by ‘humping’. It was therefore not clear whether she was referring, for example, to stealthy gyrations or frenetic thrusting movements, or something in between. Again, the evidence is not clear, beyond the fact that it involved rubbing against the applicant’s penis while in some form of embrace. The jury were not required to assume that the movements the complainant described were especially vigorous. The contrary inference is far more likely, if someone else was asleep in the bed or, in the case of the campervan, the same room.
In my view, the evidence that the cot was only beside the bed for a week to ten days is of little significance. For the reasons given, the complainant was not necessarily asserting that sexual offending in the matrimonial bed only took place while the cot was beside it.
For the reasons given, it was open to find on the balance of probabilities that uncharged acts of the kind said to have taken place in the matrimonial bed (as I understand the evidence) did happen, and the jury need not have doubted the credibility and reliability of the complainant in the light of her evidence to that effect.
I have reached these conclusions by reference to the transcript, without viewing the video recorded evidence.[42]
[42]Pell (2020) 268 CLR 123, 144–5 [36]–[37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). I had not viewed the recording of the special hearing when the proposed ground which would have required me to do so was abandoned.
Vibrators
The evidence regarding the ‘vibrators’ is quite confined. The issue is first, whether the complainant contradicted herself, and secondly, the extent to which any such contradiction bears on her credibility or reliability.
In the passage from the start of her VARE already set out, the complainant clearly states that ‘the applicant would sometimes use a ‘vibrator’, but ‘most of the time’ not at night. The questioner returns to this topic near the end of the interview. The complainant states that she only remembers ‘short things about some of them … only small detail, very small’. When asked to describe ‘that vibrator thing’ she says that she cannot remember because ‘sometimes it was different … Like, a lot of different ones’, but that the one ‘that [the applicant] usually kinda used … was a red one … like, a back massager’. This evidence appears to imply that there was more than one vibrator used. On the other hand, the complainant also said of the back massager that the applicant ‘would always, like, kinda use it’. As elsewhere, the complainant uses the word ‘always’ in an imprecise way. Later, she confirmed that the ‘back massager’ plugged into an electricity socket.
The questioner then asked, after some further answers, about ‘other ones that [the applicant] used’. The complainant’s answers betray a distinct lack of recollection:
Q1080 But you said that there were other ones that he used?
A Yeah, I – I can’t really identify them.
Q1081 Mm.
A I – I actually can’t.
Q1082 O.K.
A They were actually probably proper ones - - -
Q1083 Mm.
A - - - like, actual vibrators.
Q1084 Mm’hm.
ABut I can’t remember what they were, what they looked like, what colour they were.
Q1085 Where were they kept?
A I think they were kept in his side drawer - - -
Although the complainant says that she cannot remember the appearance of these ‘probably proper ones’ or ‘actual vibrators’, she goes on to say that she thought that sometimes ‘the smaller ones’ would be in the top drawer of the bedside table and that they ‘weren’t plugged in things, they were just, like you turned it on’. The complainant says that these were used on her probably around 20 times. She then immediately adds: ‘I’m trying to remember so many, like, things and it just keeps, like … going away’.
The evidence said to contradict these answers was given in the special hearing. There, the complainant said that ‘there was definitely no vibrator, you know, sexual vibrator used on me … at the time’ and agreed that the ‘only thing was the massager’. Whatever the complainant meant by the concluding words ‘at the time’, she confirmed that ‘there was no separate vibrators’ and that she could not remember whether there were vibrators in the drawer next to the bed.
I accept that, even though the complainant’s evidence about the ‘actual vibrators’ is vague and she eschews a clear recollection of them, she contradicted herself when she said during the VARE that they were used on her about 20 times and then during the special hearing that ‘there were no separate vibrators’. This was a matter which ought to have led the jury not to accept the evidence of use of vibrators on the complainant, either around 20 times or at all. Since none of the charged acts were said to involve such conduct (as distinct from use of the back massager), the only significance of that conclusion (apart from the evidence not being able to be used as part of the context of the charged conduct) was its effect on the jury’s assessment of the credibility and reliability of the complainant.
The applicant had a poor recollection of the matter. She freely acknowledged her error when it was put to her and accepted that her previous evidence was not correct. Her evidence of vibrators being used ‘probably’ around 20 times was immediately followed by a disclaimer as to how well the complainant could remember. Allowance must also be made for the fact that the special hearing took place nearly three and a half years after the VARE and that there was very little discussion about vibrators at all on the earlier occasion. It is not surprising that the complainant’s recollection changed in the interim.
I therefore do not consider the inconsistency in the complainant’s evidence about vibrators to be especially significant.
Conclusion as to ground 1
In the result, in my view none of the matters on which the applicant relies, taken alone, was such as to require the jury to reject the complainant’s evidence of the charged conduct or to have a doubt about the applicant’s guilt. The matters involve contestable interpretations of evidence, in several instances of a relatively minor nature, in circumstances where in most cases it was open to convict without accepting the evidence in question.
In my opinion, the combined discrepancies or ‘inaccuracies’, and the improbabilities, in the complainant’s evidence are not such as to have required the jury to doubt the credibility or reliability of her evidence of the charged conduct. Certainly, the jury was not required to believe the complainant or to rely on her evidence. But I am not able to say that they were foreclosed from doing so. They could of course accept some parts of her evidence while rejecting others.[43]
[43]For example, a child witness might be thought to have exaggerated the extent of offending without necessarily being disbelieved as to the elements of the offence: Badem v The Queen [2016] VSCA 200 [50] (Warren CJ, Weinberg and Priest JJA).
The fact that the complainant described several scenarios of sexual offending, each fraught with the risk of discovery but, of themselves, credible — the cot incident while the complainant’s grandmother was present, the ‘campervan’ incident while she was in the same room, the uncharged acts while she was in the same bed, and the ‘couch’ incident near the unscreened window — does not necessarily point to unreliability or want of credibility on the part of the complainant. It might equally point to a pattern of serial risk-taking on the part of a persistent and reckless offender.[44] Little is added when one also has regard to the problems with the complainant’s evidence about the ring, the DVD player and the vibrators.
[44]Ibid [62] (Warren CJ, Weinberg and Priest JJA).
In the circumstances, the overall effect of the identified matters is not much greater than the sum of the constituent parts. It is true, of course, that a collection of inconsistencies and ambiguities in a complainant’s evidence, or doubts about aspects of that evidence, might collectively lead to the conclusion that the jury must have had a doubt about the complainant’s evidence as a whole, even though none of those matters would justify that conclusion if considered in isolation. But in my view, that is not this case.
Other evidence tended to corroborate the complainant’s evidence, including of some of the uncharged conduct. It was not disputed that the complainant had frequently got into the matrimonial bed at night while the applicant was naked. Nor was it disputed that there was an occasion in the campervan when the applicant, while naked, shared a bed with the complainant while her grandmother was in a different bed on the other side of the room. It was further accepted that, at least for a week to ten days, the complainant had slept in a cot adjacent to the applicant’s side of the matrimonial bed. There was evidence of pornography in the grandparents’ home and also a back massager matching the description given by the complainant, except as to its colour. The applicant also admitted to watching pornography, without his wife’s knowledge. All these features of the evidence were relevant to the jury’s evaluation of the credibility and reliability of the complainant.
In the end, the applicant has not established that the jury ought to have entertained a reasonable doubt as to proof of the applicant’s guilt. I would therefore not uphold the first ground of appeal.
Ground 3
That conclusion makes it necessary to decide the third proposed ground of appeal. In my view, the reasons given by Emerton P and T Forrest JA regarding the tanning salon television suffice to dispose of that ground. In short, the clear contradiction asserted by the applicant between the evidence of the complainant and the other evidence advanced by the prosecution has not been established. No substantial miscarriage of justice therefore arose as a result of the prosecutor inviting the jury in final address to accept the evidence of the complainant.
Conclusion
I would therefore grant leave to appeal, but dismiss the appeal.
---
19
1