KNZ v The State of Western Australia
[2022] WASCA 39
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KNZ -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 39
CORAM: BUSS P
MITCHELL JA
HALL J
HEARD: 1 NOVEMBER 2021
DELIVERED : 1 APRIL 2022
FILE NO/S: CACR 177 of 2020
BETWEEN: KNZ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BRADDOCK DCJ
File Number : IND 1913/2019
Catchwords:
Criminal Law – Appeal against conviction – Child sexual offences – Whether verdicts unreasonable or unsupported by the evidence – Whether open to jury to accept the evidence of the complainant as credible and reliable – Turns on own facts
Legislation:
Nil
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr T A Game SC & Mr D P Barrow |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | MGM O'Connor Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dayananda v The State of Western Australia [2021] WASCA 11
Jago v The State of Western Australia [2022] WASCA 2
M v The Queen (1994) 181 CLR 487
MEN v The State of Western Australia [2020] WASCA 118
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
PYN v The State of Western Australia [2020] WASCA 116
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
The appellant was convicted of 20 sexual offences after a trial in the District Court. The complainant was the appellant's daughter. The offences were alleged to have been committed between 10 February 1993 and 11 February 1998 when the complainant was aged between 4 years and 8 years old. The appellant seeks leave to appeal against his convictions.
There is one ground of appeal. It is that the verdicts were unreasonable or were not supported by the evidence. In essence, the appellant submits that there were deficiencies and inconsistencies in the complainant's evidence that should have caused a jury to have a reasonable doubt that the offences occurred. A ground of appeal of this nature requires the appeal court to consider the whole of the evidence at trial to determine whether it was reasonably open for the jury to reach the verdicts that they did.
For the reasons that follow, having considered the whole of the evidence and, in particular, having regard to the very significant advantage that the jury had in assessing the credibility of the complainant and the appellant as witnesses, the appellant has failed to establish that the verdicts were unreasonable or not supported by the evidence. Whilst leave to appeal should be granted, the appeal must be dismissed.
The charges
The charges in the indictment were as follows:
(1)On a date unknown between 10 February 1993 and 11 February 1995, in a metropolitan suburb, [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her vagina with his finger.
(2)On the same date and at the same place, [KNZ] indecently dealt with [GU], a child under the age of 13 years, by masturbating in her presence.
(3)On a date unknown between 31 December 1992 and 1 January 1994, in a metropolitan suburb, [KNZ] indecently dealt with [GU], a child under the age of 13 years, by touching her vagina.
(4)On the same date and at the same place [KNZ] indecently dealt with [GU], a child under the age of 13 years, by masturbating in her presence.
(5)On a date unknown between 10 February 1993 and 11 February 1998, in a metropolitan suburb, [KNZ] procured [GU], a child under the age of 13 years, to do an indecent act, namely touch his penis.
(6)On a date unknown between 5 April 1995 and 11 February 1996 in a metropolitan suburb, [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her vagina with his finger.
(7)On the same date and at the same place [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her vagina with his penis.
(8)On another date unknown between 10 February 1993 and 11 February 1998, in a metropolitan suburb, [KNZ] sexually penetrated [GU], a child under the age of 13 years, by introducing his penis into her mouth.
(9)On another date unknown between 10 February 1993 and 11 February 1998, in a metropolitan suburb, [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her vagina with his finger.
(10)On the same date and at the same place [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her vagina with his penis.
(11)On another date unknown between 10 February 1993 and 11 February 1998, in a metropolitan suburb, [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her vagina with his penis.
(12)On the same date and at the same place [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her anus with his penis.
(13)On another date unknown between 10 February 1993 and 11 February 1998, in a metropolitan suburb, [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her vagina with a vibrator.
(14)On another date unknown between 10 February 1993 and 11 February 1998, in a metropolitan suburb, [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her anus with his finger.
(15)On another date unknown between 10 February 1993 and 11 February 1998, in a metropolitan suburb, [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her vagina with his finger.
(16)On the same date and at the same place [KNZ] indecently dealt with [GU], a child under the age of 13 years, by rubbing his penis on her leg.
(17)On another date unknown between 10 February 1993 and 11 February 1998, in a metropolitan suburb, [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her vagina with his penis.
(18)On a date unknown in the month of September 1997, in a metropolitan suburb, [KNZ] procured [GU], a child under the age of 13 years, to do an indecent act, namely touch his penis.
(19)On another date unknown between 10 February 1993 and 11 February 1998, in a metropolitan suburb, [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her anus with his finger.
(20)On the same date and at the same place [KNZ] sexually penetrated [GU], a child under the age of 13 years, by penetrating her anus with his penis.
Prosecution case
The prosecution case was that the appellant sexually abused his daughter, the complainant, GU, when she was between the ages of about 4 and 8 years old at the family home.[1]
[1] ts 208, 209.
At the relevant time, the appellant and GU lived at the family home with the complainant's mother (the appellant's then wife), RZ, and their son, SZ, who was almost three years older than GU. The house was a two‑storey building with the parents' bedroom being upstairs. GU and her brother had bedrooms in the downstairs area.[2]
[2] ts 209.
The prosecution case was that the appellant and his wife frequently argued and that this created an unpleasant atmosphere. The appellant worked as a physiotherapist and several times a week would work late. A pattern developed whereby on arriving home at night he would get undressed in a downstairs study and then go to the complainant's bedroom, wearing only his underpants, and lie down with her. The prosecutor then outlined the incidents said to have occurred over the four‑year period and which were reflected in the counts on the indictment. The order of the counts was not necessarily chronological but reflected the order in which the complainant recalled the incidents occurring.[3]
[3] ts 209, 211.
The prosecutor alleged that the complainant experienced many difficulties with her emotional wellbeing and mental health, both at the time the abuse was occurring and in the following years. These included abdominal pain and constipation. The implication was that these difficulties were consistent with the abuse having occurred as alleged. However, it was later confirmed that the evidence of physical ailments was to provide general context and was not led as being in any way probative of the allegations of sexual abuse, and a direction to this effect was given to the jury.[4]
[4] ts 615.
It was acknowledged that the complainant did not tell her mother or anyone else about the sexual abuse at the time it was happening. She did not tell anyone until several years later. The prosecutor said that there were compelling reasons for that, which the complainant would explain in her evidence. These included that the person who was alleged to have abused her was her father, who was living under the same roof.[5]
[5] ts 215.
The complainant reported the abuse to the police in July 2016 and an investigation was commenced. One of the investigative techniques employed by the police was arranging for the complainant to telephone the appellant from a police station. That occurred in April 2018. The objective was to see if the appellant would make any admission about the alleged offending. Prior to this telephone call the complainant had not spoken to the appellant for several years. The appellant did not make any admission in the telephone call, and several weeks later he sent a long letter to the complainant. The letter enclosed a book and $300 in cash.[6]
[6] ts 215, 216.
On 7 February 2019, the appellant was arrested by police. When interviewed he denied committing the offences. The State case was that he also made other statements during the interview which were not truthful. The State also alleged that during the interview the appellant sought to portray the complainant as an unstable, mentally unwell person with a range of personal problems and that this was done to delegitimise her allegations.[7]
[7] ts 216.
Defence case
The defence case was that none of the alleged offences had occurred. Senior counsel who represented the appellant at the trial said that the prosecution case depended entirely on the credibility of the complainant and that there was no evidence to corroborate what she alleged had occurred. The defence accepted that it was possible for a jury to convict on the evidence of a single witness if they were satisfied that the evidence was true, accurate and reliable, but said that in this case the complainant had no credibility.[8]
[8] ts 219, 223.
The defence case was that whilst the family was reasonably well off, the complainant did not have a pleasant or normal childhood. She and her brother were children of a particularly dysfunctional marriage. The environment was toxic, and this impacted on the children.[9]
[9] ts 222.
The complainant suffered from a very young age from illnesses and infirmities, including mental illnesses. Defence counsel cautioned the jury against drawing conclusions that any of these illnesses were caused by sexual abuse in the absence of medical evidence to support such a connection. Physical examinations by doctors at the time did not result in any suggestion that the complainant had been physically abused. This was said to be significant in circumstances where some of the offences involved allegations of actual penetration of a child that was said by her to be painful.[10]
[10] ts 224.
The complainant was treated by a psychiatrist when she was aged 14 (in 2003), resulting in a diagnosis of depression and various psychosocial issues. No connection between her symptoms and possible sexual abuse as a child was made. The complainant also said at that time she had no memory of anything that had occurred to her before she was aged 6.
Some years later, when consulting another psychiatrist, the complainant reported a 'big surge of memory'. She then provided some handwritten notes describing allegations of sexual abuse by the appellant. However, the defence case was that it was significant that those notes did not mention any penile or anal penetration.[11]
[11] ts 225, 226.
The defence suggested that there were also other facts which were inconsistent with the allegations. These included that the abuse was alleged to have occurred at times when the complainant's mother and brother were at home but that they noticed nothing untoward. Another factor was that the complainant did not complain of sexual abuse to the medical professionals she saw as a child. She made a general complaint to her brother and mother when she was aged 18 and a complaint to a general practitioner when she was aged 24.[12]
[12] ts 223.
Further, when the complainant was a teenager, and her parents separated, she returned to live with the appellant after a short period with her mother. The complainant continued to associate with the appellant when she was an adult, including after reporting the abuse to her mother and brother when she was 18. The complainant had her first child in her early 20s and for some time she was apparently happy for the appellant to have contact with her and her daughter.[13]
[13] ts 223.
The appellant had voluntarily participated in an interview with the police and emphatically denied any conduct of a sexual nature in regard to the complainant. The letter that he wrote after the telephone call contained nothing untoward and reflected the appellant's desire to resurrect the relationship with the complainant. The $300 in cash was for the purpose of purchasing the complainant's daughter a present for her upcoming birthday.[14]
[14] ts 226.
The defence case was that when all the factors referred to were taken into account the prosecution case fell well short of proving that any of the alleged offences occurred. The evidence referred to would point affirmatively in the direction that these events never occurred.[15]
[15] ts 226.
Prosecution evidence
GU - examination-in-chief
GU was 31 years old at the time she came to give evidence. GU was born in February 1989.[16]
[16] ts 261.
GU gave her evidence by video‑link from Tasmania where she was then working. She works as a clinical practice consultant at a youth detention centre. She has two children; a girl aged 9 and a boy aged 2. She has a brother, SZ, who is two and a half years older than her.[17]
[17] ts 261, 262.
GU said that when she was 4 years old, she and her family were living at a house in a metropolitan suburb. The house was a double storey building. The house had four bedrooms. One was used by the appellant as a study. The small top storey comprised her parents' bedroom, a sitting area, a walk‑in robe and a bathroom. On the lower storey of the house were the remaining bedrooms, the study, another bathroom, a separate toilet, the kitchen, dining room and family areas. GU had a bedroom on the lower level. Leading off from her bedroom was another smaller room that was used for storage. Her brother had a bedroom on the same level.[18]
[18] ts 262 ‑ 263.
GU attended kindergarten, went to school in year 1 and part of year 2 and then moved to another school in year 2.[19]
[19] ts 263 ‑ 264.
GU continued to reside at the house until she was aged 14 years old. She then returned to the house and left for the final time when she was around 18 years old.[20]
[20] ts 263.
GU said that when they lived in the house her mother worked part‑time as a nurse. Her father, the appellant, worked full‑time as a physiotherapist. At that time, he had two physiotherapy practices - one in Perth and one in Karrinyup.[21]
[21] ts 263.
GU said that when she was a child there were frequent arguments between her parents. These arguments were very loud and very heated. She said that they occurred all the time. On most evenings and over the weekend they were nearly constant. The arguments would occur either in the kitchen, which was down the hall from her bedroom, or upstairs. GU said that after arguments her mother would quite often go out walking. At other times her mother would go to bed.[22]
[22] ts 279 ‑ 280.
GU said that it was usual for the appellant to come home from work during the week around 6.30 pm to 7.30 pm. She said that she and her brother had always already eaten their dinner and she was often in bed by the time the appellant got home. Her bedtime at that age was 7.00 pm. She said she very rarely saw him before she went to bed during the week.[23]
[23] ts 281.
GU said that from her bedroom she could hear her father's car arrive. She could also see the headlights coming into the garage if it was dark, through a window in the small connecting room. GU said that she got used to hearing the appellant's routine when he got home from work. He would come in through the laundry. If GU's mother was awake the appellant would talk to her and, ultimately, argue with her. He would hang up his shirt in the laundry and he would usually then go into the study and take off his trousers and his belt. GU said that she knew this because she could hear them being flung over the study chair. She would then hear the microwave being used and guessed that he was reheating his dinner. Although she couldn't see these things when she was in bed, she could hear what he was doing and there were rare occasions when he came home earlier and she had seen him doing these things. She said that he would then usually come in to see whether she was awake or not. GU often listened to tape recorded books whilst she was in bed. She would continue listening to these audio books until she fell asleep.[24]
[24] ts 282.
GU said that there were times that she asked to sleep in her brother's bedroom. Sometimes her mother would allow this and would make up a bed on the floor out of the couch cushions. She said that the reason why she asked to sleep in her brother's room was so her father wouldn't abuse her. She also asked, and was sometimes allowed, to sleep upstairs on a couch in her parents' room or on the floor of their bedroom. She said that the reason for this was because she was afraid of being abused and wanted to be near her mother.[25]
[25] ts 282 ‑ 283.
GU said that as a young child, she generally wore nighties to bed. As she got a little bit older, she wore pyjama shorts and a t‑shirt. She did not wear underwear to bed. It was usual for her to sleep with her bedroom door halfway open because she was afraid of the dark and needed the hallway light left on.[26]
[26] ts 283.
GU said that the first time that she was sexually abused she was around aged 4 or 5. The evidence about this incident relates to counts 1 and 2 on the indictment. The appellant came into her bedroom wearing his underwear. He came into her room on her right side as she was in bed and sat on the bed. He asked her about her day and then laid down for a cuddle. She said he was laying on his side facing her. She was laying on her back. He began to rub her leg and then lifted her nightie and rubbed the outside of her vagina. She recalled that his fingers felt very oddly smooth and soft, like they were slimy. She said that sometimes during the abuse she could feel his fingernails and that they were very short, flat fingernails. When asked how it felt GU said 'unusual, like, kind of nice, to be honest, at first, because it was my dad and I thought he was just being loving towards me. But it was new and - and, yeah, unusual.' She said the touching was initially on the outside of her vagina but then the appellant inserted his fingers inside her vagina. She was not sure whether it was one finger or more. She said that when this occurred 'it felt like I was splitting in two. It felt like the most excruciating burning pain that I - it felt like I was splitting in half.' She said nothing about the pain at the time. She said that she 'just froze and laid there and began to cry.' She said that at the time she did not understand what was occurring and it was extremely confusing because the appellant was still quite kind and loving to her.[27]
[27] ts 284 ‑ 286.
GU said that the appellant then began masturbating himself until he ejaculated: by this she meant that he was rubbing his penis with his hand. She had never seen this before and had received no sex education at this age. She did not know what ejaculate was at that time. She said she remembers it as 'gooey, sticky stuff that I didn't - it was warmish, and it smelt funny.' She said that the substance went onto her leg and that the appellant then pulled his underwear up and she could see that there was a wet patch on the front. The appellant then laid down again and fell asleep on her bed. She knew he was asleep because he was snoring. Sometime later, her mother came down and woke him. They both said goodnight to GU and left.[28]
[28] ts 286 ‑ 288.
GU was asked about the frequency with which the sexual abuse occurred. She said that in the beginning it was less regular, but it got to a point where it was two to three times a week. Towards the age of 8 years the abuse decreased in frequency and then stopped. GU recalled that at one stage she experienced very intense pain when urinating. She told her mother and the appellant that it was 'stinging to wee'.[29]
[29] ts 288.
GU was asked to describe the appellant's appearance when she was aged 4. She said that he had black or very dark brown hair and a beard and moustache which were also dark brown. He had brown eyes and was of medium height. She said that he had hair on his chest and on his lower back and his legs and arms were relatively hairy as well. She said he had quite toned legs but carried a bit more weight on top. He continued to have facial hair until GU was aged about 8 or 9 or 10 when he shaved it off. She had had the opportunity to see his genitals and his buttocks. She said that he had pubic hair and that his buttocks were very flat and had a lot of hair towards the crack. She said that he had small stretch marks going across his bottom as well. She also saw his penis and described it as looking like a bell or an acorn. She said that as an adult she recognises it was circumcised, although she did not understand what that was at the time. Her opportunities to see the appellant's penis were during occasions of sexual abuse.[30]
[30] ts 288 ‑ 290.
GU said that the next incident of abuse occurred following a multicultural day at her pre‑primary school. This incident relates to counts 3 and 4 on the indictment. She recalled trying on two costumes, one being a Japanese kimono and the other being her brother's martial arts uniform. That night the appellant put her to bed. He lay beside her and was speaking about the day. He then began to touch her leg and the outside of her vagina. She was on her back and he was lying on her right side. He was only wearing underwear, which he took off. She said that as he was rubbing the outside of her vagina, he was masturbating himself. She said that he was moaning and breathing more heavily, making groaning sounds. He then ejaculated onto her stomach and left.[31]
[31] ts 290 ‑ 291.
GU said that the next day she was feeling acute pain and had a 'horrible' stomach-ache. She asked her mother not to make her go to school. Her mother had to work that day and so GU went to work with her father. She said that she was really uncomfortable about that and felt very afraid. However, she went with him as she had no other option.[32]
[32] ts 291 ‑ 292.
GU said that on the occasion of the first and second incidents, both her brother and mother were at home. She knew her brother was at home because they had both gone to bed before the appellant came home.[33]
[33] ts 292.
GU said that the next incident involved the appellant asking her to masturbate him. This incident relates to count 5 on the indictment. The appellant was in her bed and under the blankets with her. She said that him lying with her and rubbing had become 'semi‑normal'. He then took her hand and placed it on his penis and put his hand over hers and made her rub him up and down. She said it felt rubbery but hard. As he was doing this, he rubbed her vagina with his other hand. She believed that she was about 5 when this incident took place.[34]
[34] ts 292 ‑ 293.
The next incident occurred when GU was about 5 or 6. This incident relates to counts 6 and 7 on the indictment. GU said that it occurred sometime in summer. She was wearing a short silky nightie with teddy bears on it, and her mother had put a pedestal fan in her bedroom. She said that this incident happened after an above ground pool had been installed at the house. On this occasion, the appellant came to her bed wearing red underwear. She said that he inserted a finger into her vagina and that she felt pain and burning. He spat on his hand and used saliva 'inside of me'. He then moved her legs open and lay on top of her. She said that he then became quite different and was quite rough and frenzied. He ultimately pushed his penis inside her vagina. When this occurred, she felt a splitting, burning, ripping sensation. She was crying. She is not sure how long this went on for or how it finished. Afterwards she went to the toilet. She said that when she urinated she was in 'extraordinary pain'. She said that she was screaming and crying and her mother came. She said that the appellant was also present and was getting upset and saying that she was playing up and being a baby. She did not tell her mother what had caused the pain.[35]
[35] ts 303.
GU said that from the age of 4 onwards she quite regularly wet the bed. She said that sometimes her father would tell her mother that she had wet the bed, even when she had not so that she would need to have a shower and change the sheets. She wet the bed for the entirety of the period of abuse.[36]
[36] ts 303.
GU said that the next incident was the first that involved the appellant putting his penis into her mouth. This incident relates to count 8 on the indictment. She said that on this occasion the appellant was quite playful and silly, as if he wanted to have fun with her. He knelt over her face and suggested that she could try licking his penis as though it was an ice‑cream. She was laying on her back in her bed. He was kneeling over her with his knees on each side of her head. When he made the suggestion, she tried to wriggle away. Ultimately, however, she did lick it. As she was doing this, the appellant was touching her cheeks. She said that she felt like she was going to vomit or gag. He did not ejaculate. She recalls that on this occasion an audio book was playing. She does not remember how this incident ended.[37]
[37] ts 305.
GU said that as a child she experienced regular nightmares. She would wake up crying and run upstairs. On several of these occasions she had wet the bed. She said that sometimes she had wet the bed and sometimes the appellant just told her that she had. On these occasions he would also make her have a shower. She felt a lot of pain when water ran over her genitals. This gave her a phobia of the shower and she tried to do anything possible to avoid showering. It was painful and she didn't want to take her clothes off. She said that for a few years around this time they had a nanny who would help get the children ready for school after the appellant and GU's mother had gone to work. The nanny would get quite cross because GU would refuse to shower.[38]
[38] ts 306.
At around this time GU experienced urinary tract infections. She also had chronic pain in her stomach and constipation that got much worse as time went on. She spoke to her mother about these issues and her mother took her many times to see the family doctor. They used different medications to try to deal with the infections and constipation. GU was also taken to a specialist at Princess Margaret Hospital, Dr Richard Hill, about the chronic stomach pain.[39]
[39] ts 307.
The next incident GU recalled was not one that was subject to any of the charges because it had occurred in New Zealand. She believed she was aged 5 or 6 and that it was around Christmas time. The family stayed with GU's aunt, uncle and cousins for some of the time and at other times were touring in a camper van. GU and her brother had a bunk that was above the driver's seat. There was a ladder from the bunk going down to the main area of the camper van. One day the family visited a lake and played in the water. The appellant pretended to be a fish in the water. That night GU and her brother went to sleep in the bunk bed. She was sleeping on the side closest to the edge. Her mother went out walking. The appellant came to have a cuddle, and this ultimately turned into him forcing her to masturbate him. He got into the bunk for this purpose. Her brother seemed to be asleep and did not say anything. She said that the appellant ejaculated into his underpants. He then got down from the bunk.[40]
[40] ts 307 ‑ 309.
GU said that the appellant regularly didn't wear clothes at home. That is, he often only wore underwear around the house. This occurred even when friends of the children were at the house. She said that he wore jockey type underwear rather than boxer shorts. She said he sometimes also wore G‑strings around the house. He owned Speedo bathers which he would wear most Sundays.[41]
[41] ts 309.
GU said that she received gifts from her parents for birthdays and Christmas. However, during the period she was being abused she would regularly receive a gift from the appellant the day after an incident of abuse by him. These gifts were trinkets and porcelain figurines. One of them was a porcelain cottage. There was also some fairies and a purple ceramic box with a silver ribbon around it. The appellant told GU that he was giving her these gifts because he loved her so much and that she was his special little girl. She put these items along her window or on her dressing table.[42]
[42] ts 309, 310.
GU said that she would often wake up in the morning as the appellant was leaving for work. The cars were parked near to her bedroom and she would wake up when the appellant's car started. She would quite often run out after him because she didn't want him to leave. She said that this was because she was really confused by what was happening and that he was so loving in so many ways to her and made her feel so special to him. She said he made her feel like he was the parent that she needed and could trust. Her impression was that her father was the more dominant parent and that he was the one who made the decisions for the household. She said that whilst him coming to her bedroom at night scared her, the conduct had been normalised and she didn't know that what was happening was not normal.[43]
[43] ts 310 ‑ 311.
The next incident GU could recall was one where lubricant was used by the appellant. This incident relates to counts 9, 10 and 12 on the indictment.[44] One night he came to her bedroom with a jar of Vaseline. She had heard an argument between her mother and the appellant before he came to the bedroom. He laid with her in the bed as he usually did. He used the Vaseline on her vagina and her anus and on his penis. She knew what Vaseline was as her mother had used it previously to insert a suppository for constipation. He placed a finger inside her anus and told her that it would help with her constipation. At this point in her evidence GU became very upset and unable to continue. The trial was adjourned to the following day.[45]
[44] The prosecutor stated that it related only to counts 9 and 10, but that appears not to be correct. In cross‑examination it became apparent that the complainant had confused two incidents and she clarified her evidence thereby including evidence of the act that relates to count 11: see [105] ‑ [106].
[45] ts 311 - 312, 317.
On resumption, GU said that during the same incident as she was referring to the previous day the appellant penetrated her vaginally with his penis and that he was very rough. She said that the vaginal penetration happened before he placed his finger in her anus. She said that he then penetrated her anus with his penis. She said that this was one of the most traumatic recollections that she had, and she could not remember how it ended. She described it as 'the most painful experience I've ever had in my life'. She described an extreme feeling of tearing, ripping and burning. It felt like she was going to defecate. She said that afterwards she went to the bathroom and did defecate.[46]
[46] ts 322 ‑ 323.
The next incident described by GU involved the use of a vibrator. This incident relates to count 13 on the indictment. She said that on this occasion she was on her bed in her bedroom and the appellant rubbed her on the outside of her vagina and then ultimately inside with a vibrating toy. He asked her whether it felt nice. He put Vaseline on the toy, and perhaps also on her. She said that it felt tickly and strange. She recalls being 'quite giggly'. She did not know what the toy was at the time but later saw an item in her mother's drawer which she was sure was the same thing as had been used on her. The item she saw was plastic, long and straight, and cream in colour. It had a dial at the end and it vibrated. It had batteries inside it. She first saw it when she was helping her mother put away clothes. She asked her mother what it was and recalls her mother being 'a bit weird' and saying that it was one of the appellant's massaging things for his work.[47]
[47] ts 323 ‑ 325.
GU said that between the ages of 4 and 8 she suffered from chronic constipation. She said that she feared going to the toilet because it reminded of her of the tearing pain she had experienced when anally penetrated. She tried not to go to the toilet for this reason. On one occasion, after being anally penetrated, she noticed bleeding when she went to the toilet. She told her mother about the bleeding but not what had occurred before it. She said that she 'wouldn't have even had the words'.[48]
[48] ts 325.
GU said that there was another occasion when her anus was digitally penetrated. This incident relates to count 14 on the indictment. She said that the appellant used Vaseline and put his finger in her anus. He said something to the effect that it would help with her constipation. She said that at this time she believed that the appellant was a doctor. He regularly told her that he was a doctor and that he knew better than the other doctors that she saw. The penetration was painful.[49]
[49] ts 325 ‑ 326.
GU said that many things were tried to assist with her constipation issues. One of these was suppositories that were administered by her mother. GU said that this was extremely traumatic for her, but that she assumed that her mother did not know that she was being abused.[50]
[50] ts 326.
The next incident referred to by GU was one that involved digital penetration of her vagina. This incident relates to counts 15 and 16 of the indictment. GU said that the night before this incident there was a big argument between her parents. It sounded like they were in the kitchen or dining area. GU was in her bed at the time. She was wearing pink shorts and a t-shirt. She heard her mother go upstairs and the appellant reheating his dinner. The appellant came into her room wearing red underwear. They had a conversation about her stomach pain. She told him that she was really sore. GU said that her pain was always worse in the period after an episode of abuse. The appellant got into bed with her and began rubbing her leg. She said that usually in the lead-up to any abuse he would rub her tummy or her thigh. He then rubbed her vulva and asked whether that was helping her stomach pain and whether it felt nice. He inserted a finger into her vagina. As he did this, he was rubbing his penis on the side of her body. He ejaculated into his underwear. GU said that as this was happening, she was trying to listen to an audio book that was playing in her room.[51]
[51] ts 327 ‑ 329.
GU said that when she was aged around 7 or 8, in early year 3 at school, her bedroom was redecorated. She was permitted to choose the colour scheme and the bedspread. The wall colour changed from pale creamy pink to two walls bright blue and two walls bright yellow. She had a new bedspread that was blue with yellow and white daisies on it. The furniture and layout of the bedroom remained the same.[52]
[52] ts 329 ‑ 330.
The next incident was one that occurred after GU's room was redecorated. This incident relates to count 17 on the indictment. The appellant came into her bedroom and said that he just wanted a cuddle and did not want to wake her. She said that he began cuddling her as she was lying on her back and he was on his side to her right. She said he was rubbing her and, for the first time, she tried to resist. She did this by trying to roll away onto her left side. The appellant seemed to be quite angry, because he became very firm with how he was touching her and held her down on her side. He held her by the hip. She said that he then penetrated her vagina with his penis from behind. She said that she felt afraid because she thought that the appellant was angry and she was in trouble. She looked over at his face at one point and he looked cross. She does not remember how the incident ended but the appellant left her bedroom.[53]
[53] ts 330 ‑ 331.
GU said that between the ages of 4 and 8 the appellant worked on Saturday mornings and she and her brother were at home with their mother. They did chores or saw friends on Saturday afternoons. Sunday was a family day and there was a set routine of the children being taken to the appellant's bedroom for a nap with him. Their mother would be downstairs. The appellant would sleep in his underwear, but GU said that she never slept. She could not remember whether her brother slept. GU said that she regularly complained about this routine and told her mother that she would like to do something else or see her friends and play.[54]
[54] ts 331 ‑ 332.
The next incident occurred shortly after GU's grandfather (the appellant's father) passed away. This incident relates to count 18 on the indictment. This was when GU was aged about 6 or 7. She said that family members from New Zealand came to Perth for the funeral. One night the extended family went to Kings Park and there was an argument between the appellant and his mother. GU's mother took her and her brother home in a taxi. Later that night, after the children had gone to bed, the appellant came home and started shouting at GU's mother. This woke GU up. The appellant came to GU's bedroom smelling of alcohol. He apologised for GU's mother's behaviour and said that she had ruined the evening by taking them home. GU found this odd as her mother had done nothing wrong. The appellant was extremely angry. He was wearing black pants and he took GU's hand and used it to rub his pants over his penis. GU's mother then came into the room and told the appellant to go to bed.[55]
[55] ts 332 ‑ 335.
The final incident relates to counts 19 and 20 on the indictment. GU said that on this occasion the appellant came to her room and put Vaseline on his penis and on her vulva and anus. He then put his finger inside her anus. She found this to be excruciatingly painful. It continued for about five minutes. He then moved her so that she was sitting on him and his penis was pushing against her anus. His penis only went a little bit into her anus because it was too painful and she was crying. She does not know whether the appellant ejaculated and cannot remember how this incident ended.[56]
[56] ts 335 ‑ 337.
GU said that there were some smells that she associates with the abuse that she can recall. She said that she could vividly remember the smell of the appellant's ejaculate. She could also remember the smell of the cologne that he wore at the time. She said that she had smelt the cologne again as an adult and believed it was 'Chanel something'.[57]
[57] ts 338.
GU said that her latest memory of any sexual abuse was when she was aged around 8 years old. She said that in the years that followed she had no major issues with the appellant until she reached puberty, in about year 5 or 6 of school. He then started treating her very differently. She said that he was highly controlling of every aspect of her life: how she looked, what she wore and who she saw. He told her that she was 'an inherently bad kid'. He took her bedroom door off its hinges. She found this an odd punishment and it made her feel very violated. She was not able to get changed without him watching her. She said that he would also come into the bathroom when she was trying to shower. When she was about 15 or 16, he gave her a see‑through white negligee.[58] She never wore the negligee and it still had the tags on when she gave it to the police.[59]
[58] ts 339 ‑ 340.
[59] ts 342.
GU said that as a child, in addition to physical ailments like stomach pains, constipation and urinary tract infections, she was extremely anxious, submissive and afraid. Her mother took her to doctors, including a specialist for stomach pain and a psychologist. She also saw psychiatrists as a teenager.[60]
[60] ts 340 ‑ 341.
GU said she continued to live at the house until she moved out when aged 13 or 14. A couple of years later she returned to the house to live and then left again soon after. She finally stopped living there when she was aged 17 or 18. The appellant paid for her medical costs when she was a teenager and for all expenses when she was living at the house.[61]
[61] ts 342.
GU made three attempts at suicide as a teenager. She was admitted to a psychiatric hospital three times in her early teens and once in her later teens. Her treatment included many different medications. She also began drinking alcohol from the age of 12 in order to cope with what she was feeling. She gained a 'huge amount' of weight.[62] She became rebellious and regularly ran away from home.[63]
[62] ts 342 ‑ 343.
[63] ts 348 ‑ 349.
GU said that she told her mother and brother what had occurred when she was about 18 years old. Her first contact with the police about this matter was in about 2014. In 2016 she made a formal complaint to the police and commenced the process of providing a witness statement.[64]
[64] ts 344.
On 21 April 2018, GU attended a police station and made a telephone call to the appellant at the suggestion of the investigating police officer. She had had no contact with the appellant for the four years prior to the call. She had made a decision to become estranged from him when her daughter was young. The purpose of the call was to see if the appellant might confess to sexual abuse of GU. However, in the call, the appellant denied hurting or abusing her.[65]
[65] ts 349 ‑ 350.
The following month a text message addressed to GU was received from the appellant on the police mobile phone that had been used to make the pretext call. In the message the appellant stated that he had never intentionally or knowingly done anything to harm her. He apologised for anything unintentional that had happened that had left her feeling hurt. He expressed pride and love for her and said that he was committed to supporting her as needed.[66]
[66] ts 351, Exhibit 6.
On 16 May 2018 GU received a package from the appellant. The package was delivered to a business that GU and her husband owned. It contained a letter, a book and $300 in cash. The letter stated that the cash was to buy GU's daughter a birthday present. GU has had no further contact with the appellant.[67]
[67] ts 352 ‑ 356, Exhibit 7.
GU said that when she was a child the appellant regularly said her mother hated her and her brother and had not wanted to be a mother. He said that her mother did not want them and did not love them. She believes this was first said when she was about 6 and the comments became worse as time went on.[68]
GU - cross-examination
[68] ts 356.
GU agreed that the process of completing her witness statements had been a long one. This was not because she could not remember what had happened but because she had never before had to tell anyone in such 'graphic detail'. She had always remembered the abuse and had not recovered any memories or undergone hypnotherapy.[69]
[69] ts 357 ‑ 358.
GU agreed that she had been prescribed many drugs as a child and teenager. She also accepted that as a teenager she had problems with alcohol. She said that she had experienced one instance of head trauma as a consequence of having a brick thrown at her at a party.[70]
[70] ts 358 - 359.
GU said that she could remember things from when she aged 4 or 5. She was not aware of having told medical professionals that she had no memories from birth to about 6 ½ or 7. If she had said something to that effect it was not true. She said that the reason she might have said something like that was because she did not want to speak to those people about the abuse. She could not recall later telling another doctor that these things had come back to her in a burst.[71]
[71] ts 360 ‑ 362.
GU said that she had never taken any illicit drugs. She did not remember telling hospital staff in 2003 that she had used cocaine and amphetamines previously. She said that at that time she was a rebellious teenager and she might have wanted to appear 'a bit more hardcore' than she was. She said other teenagers she was hanging out with at the time did use illicit drugs and she wanted to be a 'cool kid'.[72]
[72] ts 363 ‑ 366, 383.
GU accepted that in her admissions to a psychiatric hospital in 2003 and 2004 she had referred to having mood swings and being depressed due to her parents arguing and separating but had not mentioned sexual assault. At that point she had not been able to tell the medical professionals about the abuse. She said that this was because she was going home to her parents and was afraid of the appellant, who controlled her. She said she was not strong enough within herself to talk to someone about the abuse.[73]
[73] ts 381.
GU accepted that as an 18‑year‑old she committed an offence of dishonesty by leaving a restaurant without paying for a meal. She was granted a spent conviction for that offence. She also accepted that as a young person she had lied about her age. She had also been convicted in 2007 to 2009 of offences of driving whilst disqualified and reckless driving. She denied that this reflected disrespect for the courts or court orders.[74]
[74] ts 385 ‑ 388.
GU accepted that she abused alcohol as a teenager but had not drunk since 2010, when she 21 years old and pregnant. She denied that past alcohol use had resulted in any later problems with her memory. She had been prescribed Stilnox for insomnia and had taken it intermittently but denied being told that it could cause nightmares. She said that she did have nightmares and that in some she saw a bearded man and that she had had such nightmares since she was a small child. She said that the bearded man was her father and said that if she told others that she could not identify the man, that was because she was not willing to identify him at the time.[75]
[75] ts 389 ‑ 392.
GU agreed that she was admitted to Hollywood Hospital three times - the first time was between 16 October 2003 and 2 November 2003; the second time was between 4 February 2004 and 23 February 2004; and the third time was between 3 April 2004 and 3 July 2004. She accepted that on none of those occasions did she tell those who treated her that she had been sexually abused. At that stage she had not yet told her mother or her brother. She was not particularly close to her mother or brother at that time.[76]
[76] ts 392 ‑ 393.
GU said that she did not cut off contact with the appellant after telling her mother about the abuse. She said that this was not for financial reasons but was for complex reasons that she was still trying to understand. She denied that she continued to see him because he had never done anything untoward. She agreed that she and her brother had credit cards and that the family went for holidays overseas. She said that while her and her brother's physical and financial needs were catered for if they did what was expected of them, their emotional needs were not.[77]
[77] ts 394 ‑ 395.
It was put to GU that during her February 2004 hospital admission she had told a nurse that she had recently broken up with a boyfriend who worked at the hospital. A note from the hospital records to this effect was produced. GU said that the record was mistaken and that she had never dated anyone at the hospital. She said she would not have told a nurse something of this nature. She noted that the notes were wrong in another respect by stating that her eyes were brown when they were blue.[78]
[78] ts 397 ‑ 398.
GU agreed that she moved out of the house when she was aged 14. She moved back some time later and lived there until she was aged 16. When she moved back her mother was no longer living there and she lived there alone with the appellant. She said that she wanted to live with her mother but it was not possible because her mother was house sitting, moving every two or three weeks, and could not afford a house of her own. Her parents were going through divorce proceedings at that time and her mother had no money. When her mother eventually got her own place GU went to live with her. GU agreed that during the period that she lived at the house alone with the appellant he did not attempt to do anything untoward. However, she disagreed with a suggestion that she had no difficulty living there with the appellant. After leaving she continued to visit the appellant at the house in the company of her brother. She said that she did this with difficulty and regularly made excuses not to go. She agreed that she loved the appellant and bought him presents on his birthday and other occasions. She disagreed with a suggestion that she would not have done this if she had been abused and said, 'it's my dad so it's a very complex thing'.[79]
[79] ts 400 ‑ 402.
GU was shown a Father's Day card and a birthday card which she had given to the appellant and in which she had written of her love and appreciation. The birthday card had been given to the appellant when GU was 21 years old. She agreed that she had given him the cards but denied a suggestion that they were inconsistent with the abuse she alleged. She said of the birthday card that giving him such a card was what she 'had to do at that point'.[80]
[80] ts 403 ‑ 406, Exhibits 14 and 15.
GU married her first husband in 2010 after finding that she was pregnant. The wedding took place at Karri Valley Resort. She agreed that she had been happy for the appellant to attend that wedding. He walked her down the aisle with her mother, bought the flowers and gave a speech. Asked to explain this she said that she had not yet made a decision to be estranged from him and was 'still processing everything'. She said that she did what was expected of her growing up in her family. She said that she did love the appellant but maintained that he had abused her.[81]
[81] ts 406 ‑ 407.
GU agreed that when her daughter was born the appellant had contact with the child but said that this was difficult for her and only occurred when she was present. She was shown photographs of the appellant and her daughter together. It was put to her that she had no difficulty with him seeing the child. She said that she had 'huge, huge, huge difficulty' and that it was one of her greatest regrets. She said that she allowed it because 'that's what you do when you're raised in my family'.[82]
[82] ts 412.
GU cut contact with the appellant soon after her daughter's first birthday. She said that this decision came after speaking to a relative and growing stronger within herself. She sought counselling before reporting the matter to the police.[83]
[83] ts 414 ‑ 415 and 427.
GU was asked whether she had a lock on her bedroom door at the home. She said that sometimes she would move her bed against the door to keep the appellant out. That worked in the short term. She agreed that her brother's bedroom was a short distance away but did not know if her crying was audible. She said she was not able to scream or talk but was frozen and crying.[84]
[84] ts 416 ‑ 417.
GU agreed that she had urinary tract infections as a young child. She believed that there was a link with the abuse. When asked whether she had had an infection when she was aged 3, she said that she could not recall. GU could not exclude the possibility that she had had a urinary tract infection before the abuse commenced. GU also agreed that she had constipation as a child and that her mother sometimes inserted suppositories, using Vaseline.[85]
[85] ts 418 ‑ 420.
GU said that the family GP was Dr Veling and she could not remember him ever giving her an intimate examination. She agreed that she did not tell him she had been abused until she was a late teenager. He had discouraged her from going to the police about the abuse and she had reported him to the medical authorities. Dr Veling had arranged for her to see Dr Paterson at the Hollywood Clinic. She said that she did not have an opportunity to talk to Dr Paterson: he saw her briefly at the clinic to change her medication and then left.[86]
[86] ts 418 ‑ 421.
GU accepted that there were some occasions when she saw the appellant after her daughter's first birthday in May 2012. She did not have any memory of attending Christmas 2012 at the appellant's house but said that if she did by that stage she was only attending events with him if her brother was also present. She said it was usual for the appellant to hold a birthday party for himself on 22 December each year and that, whilst not happy to attend, she was expected to go. She did not remember attending a barbeque at the appellant's house on 15 January 2013 but did not deny that she may have. She remembered him coming to look at a block she and her husband were buying in 2013. She said that she did these things because she had not yet made the decision to cut the appellant out of her and her children's lives. She did keep him at arm's length as much as she could but said that this was difficult as he is a very dominant person. She said that she was very intimidated by him and challenging him or putting up boundaries was something that she found extraordinarily difficult. [87]
[87] ts 428 ‑ 431.
GU did visit the appellant once at his workplace with her daughter and her first husband. She also took her daughter to a building site where the appellant was doing a development project. Her first husband was a builder and he wanted to look at the site. She was not happy to go but was unable to challenge the appellant.[88]
[88] ts 432.
GU denied that there was ever a time when she remembered nothing before the age of 6. She did not recall saying anything to that effect to a nurse at the Hollywood Clinic in 2004. If she had said something like that it would not have been true. She did not know if she had ever requested hypnotherapy to recover lost memory. She was shown a note made by a nurse that recorded that GU had asked why she had no memories from 'zero to six years' and that she 'wanted to see someone re hypnotherapy'. She said she had no recollection of saying such things and had never received hypnotherapy.[89]
[89] ts 434 ‑ 439.
GU agreed that the door to her bedroom was removed after the sexual abuse had ended. She was about 12 years old when the door was removed. She does not know why the appellant did this though she felt that it was so that he could see her getting changed. She denied that it was because she was at risk of self‑harm or suicide though she did accept that she had attempted suicide three times as a young child.[90]
[90] ts 440 ‑ 441.
GU said that she had been asked to name people who may be able to corroborate her story. One of the people she named was a childhood friend with whom she had not been in touch for some time. She messaged that person to advise that the police may contact her. She told the friend about the abuse and asked if she (the friend) remembered the appellant 'being weird at all'. There were exchanges of messages over several days and the friend made it clear that she could not assist. By that time GU had become aware that the friend was seriously ill and that the appellant had offered to assist her with medical bills. GU told the police not to contact the friend because of her health problems. She denied that this was because the friend was not 'on-side' and said that when they spoke on the telephone the friend was very sympathetic until she spoke to the appellant. The friend had said that she was very confused and didn't know what to do.[91]
[91] ts 457 ‑ 470, 473.
GU said that she had provided screenshots of the messages with the friend. She accepted that what she gave to the police did not include all of the messages. Some had been deleted but that was not done deliberately or in order to 'sanitise' the conversation.[92]
[92] ts 474 - 475. It was later conceded by counsel that the suggestion that GU had not provided the complete exchanges was incorrect: see ts 680.
GU agreed that she used the $300 that was sent by the appellant to partly fund a trip to Bali with her daughter. When asked if that was not too traumatic a thing to do, she said 'no, I think that that's the least he could do.' She was happy to spend the money on something positive. She gave the book to the police. The police said it was not necessary for them to receive the money.[93]
[93] ts 479.
GU denied being motivated by money. She had not made inquiries about criminal injuries compensation, either with any lawyer or the police. She said that if she had wanted money from the appellant she would not have become estranged from him. She understood that any compensation for historic offences would be very minimal.[94]
[94] ts 480.
It was put to GU that the incident in New Zealand could not have occurred because the bunk bed was too small. It was suggested that this was just a fantasy on her part. GU denied this and maintained that it did happen. She said that her mother was out walking when this occurred. GU was aged 5 or 6 at the time.[95]
[95] ts 482.
GU said that her mother was often awake when her father came home. She did not think that she had ever said that her mother was always in bed by that time. If she said that to a psychiatrist (Dr Wu) in 2009 it was a mistake. She was shown notes that had been written by her at that time and agreed that she had written, 'He always came home late after mum was in bed'. She said that this was not accurate and that, in fact, it was unusual for her mother to be in bed. She was not sure why she had written it. She also said that the focus of the notes was not about when her mother went to bed but on writing a journal for herself as part of a cognitive behavioural therapy course.[96]
[96] ts 481 ‑ 482, 489 ‑ 490, 504.
It was also put to GU that in the notes she had written an account of the abuse, including that she was haunted in her dreams by a bearded man but had not identified that man as the appellant. She accepted that was so but said that she was writing the notes for herself and she knew that the bearded man was the appellant. She also accepted that the notes were wrong in saying that the appellant had told her every night to wash herself after the abuse and that the abuse only happened after her mother was in bed.[97]
[97] ts 506 ‑ 508.
In the notes GU had also written that on one occasion after ejaculating the appellant had told her how much better she was 'at that' than her mother and that he would show her more if she was really good. She had also written that the appellant had shown her pornography. She said that these things were true.[98]
[98] ts 509 ‑ 510.
It was put to GU that there was no suggestion in the notes that the appellant had digitally penetrated her or penetrated her with his penis. She accepted that that was so and said that these things were highly traumatic, and she was not able to describe those details until she reported the matter to the police. She denied a suggestion that they did not feature in the notes because they did not happen.[99]
[99] ts 511.
It was put to GU that her evidence about the first incident was inconsistent with her witness statement: in the statement she had said that the appellant came into her bedroom and undressed and sat on the bed, whereas in evidence she said that he came into the room in his underwear and got into bed with her. She explained this by saying that he came into the room in his underwear and then undressed by removing that underwear and that she didn't include him sitting on the bed in the statement because it was a minor detail.[100]
[100] ts 517 ‑ 519.
It was suggested to GU that she had not been consistent as to whether the appellant was generally kind and loving towards her during the period of the abuse. She said that it was rare for him to be nice in the household but that he went out of his way to make her feel very special and loved when he was abusing her.[101]
[101] ts 522 ‑ 523.
It was put to GU that she was inconsistent as to count 2: in evidence she said that the appellant ejaculated on to her leg, whereas in notes she made in 2017 she said it was near her leg. She said she did not know why there was a difference and that the notes were not her witness statement. She maintained that her evidence was correct, and that the appellant had ejaculated on to her leg.[102]
[102] ts 527.
It was put to GU that she was inconsistent as to count 3: in evidence she said that the appellant had removed his underwear first and touched her initially on the top of her nightie, whereas in her statement she said that he pulled his underwear down after starting to touch her, did not refer to rubbing over the nightie and referred to him moving her legs apart. She said in evidence that he ejaculated onto her stomach but in her statement said that he ejaculated into his underwear. She said in evidence that he left afterwards, but in her statement said that he fell asleep. She accepted these differences and said that her statement was correct as to him ejaculating into his underpants. She said that in evidence in chief she had been confused with another incident and was not always sure which incident was being referred to.[103]
[103] ts 527 ‑ 534.
It was put to GU that she was inconsistent as to count 8: in evidence she said that the appellant had touched her vulva before penetrating her mouth with his penis, whereas in her statement she said that he touched her inner thighs and legs. She accepted that the statement did not refer to the touching of her vulva. She could not explain why this was left out but maintained that he rubbed all those parts of her.[104]
[104] ts 535 ‑ 536.
It was put to GU that she was inconsistent as to count 9 in that in evidence she had referred to the appellant using Vaseline on both her vagina and her anus, whereas in her statement she said that the first time Vaseline was used he penetrated her vagina (not her anus). GU said that in her evidence she had mixed up two incidents. Her statement had the correct details. Her statement was put to her and she confirmed that it was correct. In her statement she said of counts 9 and 10 that the appellant came into her bedroom after an argument with her mother and said he needed some 'daddy/daughter time'. He said this a lot and it made her feel special. He opened her legs and rubbed her vulva and inside her vagina with Vaseline. The Vaseline was in a yellowy tub with a blue lid. It was sticky and was the same cream as was used by her mother to assist with inserting a suppository. He pushed his penis into her vagina, and it was excruciatingly painful.[105]
[105] ts 538 ‑ 542.
It was put to GU that she was inconsistent as to count 11 in that in evidence she said that after being anally penetrated she felt like defecating and afterwards in fact did so, whereas in her statement she said that she felt like defecating but did not mention that she actually did so. She accepted this difference but maintained that what she said in evidence was correct and she had a memory of it.[106]
[106] ts 544.
It was put to GU that she was inconsistent as to count 13 in that in evidence she said that her mother said that the vibrator was used by the appellant for massaging at his work, whereas in her statement she said that her mother had said that it was used by the appellant for massaging her back. She said that her mother had said it was for her back but that GU had assumed that it was for both her back and his work because he was a physiotherapist. There was also a suggestion that in evidence GU had said that the appellant put Vaseline on both her and the vibrator, whereas in her statement she had said that he 'put Vaseline on and inserted it', implying that it was only put on the vibrator. She said that he did put it on the vibrator and might also have put it on her.[107]
[107] ts 544 ‑ 548.
It was put to GU that she knew what Vaseline was when it was first used by the appellant, because it had been used by her mother to insert a suppository and that this meant she was suffering constipation before she was anally penetrated. She did not accept that proposition.[108]
[108] ts 548 ‑ 549.
It was put to GU that she was inconsistent as to count 17 in that initially in evidence she said she could not recall whether any lubricant was used, whereas later in evidence and in her statement she had said that it was used. GU said that she could in fact recall that the appellant used Vaseline by putting it on his penis.[109]
[109] ts 549.
GU said that she could recall only one intimate examination by Dr Veling, which was for a pap smear. As far as she could recall he did not examine her anus when she was suffering from constipation. He referred her to specialists. She made several attempts to obtain her medical records from the practise. She agreed that she was treated by a number of doctors before the age of 18 and did not tell any of them of the abuse before that age.[110]
GU ‑ re-examination
[110] ts 553 ‑ 556.
GU said that she reported Dr Veling to the medical authorities because when she went to him for help regarding the sexual abuse he told her not to go to the police and that it would destroy her. She said that she needed to consider it and that she needed to keep her daughter safe. He would not give her her medical records, or at least told her that they had been water damaged because he had put them in a shed. She reported him to AHPRA for trying to persuade her not to report the abuse and for not keeping her medical records.[111]
[111] ts 557.
GU said that she did have memories from the period when she was aged 4 to 7 years old. She can remember her teachers from that period and holidays that the family went on, including to New Zealand.[112]
[112] ts 558.
GU said that she first told a friend about the sexual abuse when she was 13 years old, but that person is no longer alive. She did not tell anyone else until she was 18 years old.[113]
[113] ts 562 ‑ 563.
GU said that in 2013, when she was an adult, she had an abusive relationship with the appellant. She said that this meant that he was extremely emotionally controlling and emotionally abusive. She said that if she challenged him, he would barrage her with abusive text messages, withdraw support, withdraw love, try to set the rest of her family against her and threaten to see her daughter without her being present.[114]
[114] ts 564.
GU said that she waited so long before telling any adults of the abuse because she needed to get to a point within herself where she was able to verbalise what had happened. That was extremely difficult because there was a lot of embarrassment and shame attached to the abuse. Another reason for the delay was that as a child she was dependent on, and controlled by, the appellant. He inserted himself into every aspect of her life and her medical care and she was extremely afraid.[115]
[115] ts 564.
GU clarified that she moved out of the house to live on her own when she was aged 14, she moved back when she was 16 and finally left just before she turned 18. When she lived there between the ages of 16 and 18 her brother was also living there. She remained financially dependent on the appellant until 2015 though she did receive Centrelink payments for some of that time.[116]
[116] ts 568 ‑ 569.
In regard to count 9, GU said that she could remember the first time that the appellant penetrated her vagina. She said that he used Vaseline and was 'incredibly rough'. She said that his whole demeanour, and his face, changed. She remembers the pain of this incident. She felt like she was being squashed and couldn't breathe. [117]
RZ
[117] ts 570.
RZ is the ex-wife of the appellant and mother of GU. She married the appellant in 1979. They separated in 2004 and were divorced in 2005.[118]
[118] ts 571.
GU was born on 11 February 1989. Her older brother, SZ, was born on 22 May 1986.[119]
[119] ts 571.
During the marriage the appellant worked very long hours as a physiotherapist. On Tuesdays and Thursdays he worked late and often did not come home until the children were asleep. On other nights he would come home between 6 pm and 7 pm, sometimes later. He also worked half the day on Saturdays. RZ worked part‑time as a nurse.[120]
[120] ts 571 ‑ 572.
RZ said that after the birth of SZ the marriage dynamics changed. It became an emotionally and verbally abusive marriage. There was arguing on a daily basis. The children were present when these arguments occurred. If it was late at night RZ would leave the house and walk the dog to escape. On these occasions she would often return very late, take cushions off the lounge chairs and make a bed downstairs. She would get up before the children in the morning. She said that there was a cycle of verbal and emotional abuse until it reached a point where she was pushed to the brink and then the appellant would buy her flowers or chocolate and behave decently towards her until the cycle began again.[121]
[121] ts 572.
RZ said that the family moved into the house when GU was 2 years old. GU had a number of ailments as a very young child. From the age of 4 she had abdominal pain and was diagnosed with constipation. She had 'stinging wees' and pain passing faeces. RZ took her to doctors who prescribed medication, including suppositories. GU also had a period of two to three years starting at about 4 or 5 years of age when she wet the bed one or two times a week.[122]
[122] ts 573 ‑ 574.
GU's bedtime, when she was aged 4, was 7 pm. By the time GU was aged 8, it was 7.30 pm. SZ was about three years older and would stay up slightly later reading in his bedroom. In the period when GU was aged between 4 and 8 the appellant would go to her room and read to her when he came home from work, other than on Tuesdays and Thursdays when he worked late. GU would also listen to audio books and the appellant would get into bed with her and listen to them.[123]
[123] ts 574 ‑ 575.
During the working week RZ would eat her dinner with the children before the appellant came home. She would cook a dinner for the appellant, and he would reheat it in the microwave. There were very frequent occasions when RZ went to GU's bedroom and found the appellant asleep in the bed. She would hear his snoring and go to wake him. The bedroom light would always be on, but both the appellant and GU would be asleep.[124]
[124] ts 576.
The appellant bought GU gifts at times other than birthdays and Christmas. He bought her lots of ceramic trinkets of unicorns and fairies. One was a small box called a little box of love. RP did not think that the appellant bought SZ gifts with the same frequency.[125]
[125] ts 576 ‑ 577.
When GU was aged 4 to 8 years old the appellant usually left for work in the morning at 6.30 am. GU's bedroom backed on to the garage and if she woke when the appellant's car started she would run down the hallway, out the laundry door and down the driveway screaming for her daddy.[126]
[126] ts 577.
RZ said that when GU was in year 1 and 2 there was a stage when she was difficult to leave at school. There was also a significant issue with GU not wanting to shower and avoiding taking her clothes off.[127]
[127] ts 578.
The appellant had a routine when he came home from work on weeknights. He would come in through the laundry and put down his briefcase in the study. Then he would take off his jacket and tie and his business trousers and shoes. He would leave on his business shirt and underwear. On the weekends he would often wear only underwear or, in the summer months, bathers or brief rugby shorts.[128]
[128] ts 578.
RZ said that during the marriage she owned a vibrator. It was cream coloured, made of solid plastic and battery operated. It was kept in a cupboard or locker on the left side of her bed.[129]
[129] ts 579.
The appellant had a beard until he was 40.[130]
[130] ts 579.
When GU was aged 4, she showed anxiety related to school. She also saw a specialist for abdominal pain. The specialist was of the view that the pain did not have a physical cause but was psychosomatic and referred her to a clinical psychologist. When GU was aged 5, she saw a clinical psychologist, Andrew Relph. She continued to display anxiety and her parents tried moving her to a different school, but it didn't help. After the age of 8 she became a happier child. Depression returned when she was aged 12. She was started on medication by the family GP, Dr Veling. The depression continued through her teenage years. There was an occasion when the appellant removed GU's bedroom door.[131]
[131] ts 579 ‑ 581.
GU was admitted to Hollywood Clinic three times because she was mentally unwell. On each occasion the admissions came following a suicide attempt.[132]
[132] ts 582.
RZ left the family home for about three weeks in 2001 and six months in 2002 before finally leaving in 2004. When RZ left in 2004 she stayed at her brother's house and then house-sat a number of different houses over a three year period until the marriage property settlement was finalised. GU stayed with her during the six months in 2002 and after 2004 would stay with RZ as often as she could.[133]
[133] ts 582 ‑ 584.
GU told RZ of the sexual abuse when she (GU) was 19 years old.[134]
[134] ts 584.
In cross‑examination RZ agreed that SZ's room was not far from that of GU. She accepted that it was possible that conversation in GU's room would be audible in SZ's room. She accepted that if someone was crying or screaming in GU's room it would be capable of being heard in SZ's room.[135]
[135] ts 584.
RZ denied that the reason that GU's door was removed was because she was self-harming. RZ said that at the time GU was depressed and associating with a rough group of friends. At the age of 12 or 13 she had started drinking. However, she never used drugs as far as RZ was aware.[136]
[136] ts 585.
RZ agreed that GU had been taken to see Dr Veling from when she was very young. RZ thought that the first time GU had a urinary tract infection was when she was aged 4. GU was not intimately examined by Dr Veling when taken to see him for this issue. RZ noticed redness in the area of her genitalia that was consistent, in her experience as a nurse, with urinary tract infections. GU also had a problem with constipation at about the same time. Dr Veling prescribed suppositories and RZ accepted that it was likely that she administered them using Vaseline. She thought this was after GU was aged 4 and it continued until age 5, after which the condition was managed with oral medications. When administering suppositories RZ noticed that sometimes there was redness in GU's anal region. It never crossed RZ's mind that GU had been anally raped in a violent fashion. She could not recall any bleeding.[137]
[137] ts 587 ‑ 590.
RZ was shocked when GU told her of the abuse and it took a while to process. She did not tell GU to go to the police as she was an adult. RZ rejected suggestions that at this time GU had issues with reality or honesty.[138]
[138] ts 593 ‑ 595.
In 2009 RZ wrote a letter to the appellant regarding his obligations to financially support GU. It was rare for her to communicate with the appellant at this time. The letter does not refer to the allegation of sexual abuse and she did not otherwise raise it with him.[139]
SZ
[139] ts 599 ‑ 603, Exhibit 27.
SZ is the son of the appellant and the older brother of GU.[140]
[140] ts 617.
SZ said that the family moved to the house when he was 5 years old. There was a great deal of conflict between his parents. The conflict began 'ramping up' when he was aged around 7 or 8 and continued until the time of their final separation when he was 17 years old. He said that his father was controlling and that this was most pronounced towards his mother and GU. He said that Sundays was described by the appellant as a family day, but in fact it was a kind of enforced attendance to do work at one of the many rental properties his parents owned. On Sunday afternoons the children were often told to take a nap which 'unusually' would take place in his parent's bed without his mother being present.[141]
[141] ts 617 ‑ 618.
SZ said that his mother would sometimes leave the house in a very distressed state. There were occasions when the children found themselves without any parents in the house. He would often go for walks with his mother and the family dog. This was generally after dinner.[142]
[142] ts 617 ‑ 618.
SZ said that on multiple occasions GU asked to sleep in his bedroom. She would usually bring a blanket and a pillow and sleep on the floor at the foot of his bed. She was quite insistent and so he often allowed her to sleep in his room when she asked. This occurred when he was aged 8 to 11 years old.[143]
[143] ts 619.
SZ said that the distance between the doors of their bedrooms was about three metres. The doors were at an angle so he could see partially into her room from his door when the doors were open. He usually slept with his door ajar when he was a younger child. He said he was a fairly deep sleeper. He would listen to audio books at night and often go to sleep before they finished.[144]
[144] ts 619 ‑ 620.
SZ said that when the appellant came home from work he would strip down to his underwear. He would also wear just underpants around the house on the weekend. These were brief style pants, rather than boxer shorts.[145]
[145] ts 620.
A babysitter would attend in the mornings to get the children ready for school. GU would refuse to shower at least once or twice a week and work herself up into a high state of distress, including sobbing uncontrollably.[146]
[146] ts 621.
SZ said that when the appellant left for work in the mornings GU would often be in a high state of distress. There were times when she would run out of the house in tears. She would run into the garage and, several times, down the driveway.[147]
[147] ts 622.
When GU was aged from about 12 years old she would refuse to be touched or hugged by the appellant. She often displayed what SZ interpreted as revulsion and resisted when the appellant tried to hug her.[148]
[148] ts 622.
SZ said that when he was 21 years old and she was 18 years old GU told him that the appellant had sexually abused her. RZ and a friend of GU's were also present on this occasion. They discussed the matter at length. In cross‑examination SZ said that he was still living at the house with the appellant at this time. He did not take the matter up with the appellant as he did not consider it his place to do so. It did make him want to leave, however he continued to associate with the appellant for a time and went on a holiday to Scotland with him in 2012.[149]
[149] ts 623 ‑ 629.
The respondent emphasises the significant advantage that the jury had of seeing and hearing GU give evidence, including under cross‑examination. Attention is drawn to remarks of the trial judge in sentencing that GU was 'an impressive witness' who 'described the offences against her convincingly and vividly'. The respondent suggests that the jury may have been impressed by things which indicated the candour of GU, including that as a child she had loved the appellant even when he was abusing her, that some of the incidents were difficult to distinguish, that her memory had fluctuated as to details due to the lapse of time, her acceptance that she had transposed two of the incidents, her frankness regarding her mental health issues and substance use and her acknowledgement that she had not told the truth when she told hospital staff as a teenager that she had used illicit drugs.[266]
[266] WAB 76.
The respondent submits that the degree of detail provided by GU in her account of the abuse was not inherently unlikely. The issue of the capacity of human memory to accommodate details at a young age was a matter suited to assessment by the jury relying on their collective experience. As to the possibility of reconstruction, this was put to the complainant in cross-examination. She denied ever having had hypnotherapy and there was no evidence to the contrary.[267]
[267] WAB 77 ‑ 78.
Are the verdicts unreasonable or unsupported by the evidence?
As has been noted, this court performs its function on the assumption that the jury assessed the evidence of the complainant as credible and reliable. The jury undertook that assessment with the advantage of seeing GU give her evidence over four days. She commenced her evidence on the morning of Wednesday, 14 October 2020 and it was completed in the early afternoon of Monday, 19 October 2020. Cross‑examination occupied approximately two days of that period.
The evidence of GU was detailed, clear and largely consistent regarding the incidents of sexual offending. There was one occasion in evidence in chief where GU became upset and conflated two of the incidents, but that was corrected in cross-examination. She otherwise resolutely maintained that each of the incidents had occurred as she had described them. She was not shaken in cross‑examination and did not retract or resile from any significant part of her evidence.
The level of detail provided by GU about the incidents of sexual abuse was a compelling feature of her evidence. Those details include the use of lubricants, what she and the appellant were wearing on some occasions, the use of a vibrator on one occasion, what the appellant said to her to induce her to cooperate with him, the feeling and appearance of the appellant's genitals, her own feelings both of pleasure and pain, and the smell of the appellant's ejaculate and his cologne. GU also gave evidence of surrounding circumstances, such as her bedtime routine, the playing of audio books, the appellant's routine on coming home from work, the arguments between her parents, the receipt of presents from the appellant, her avoidance of showering and her history of physical and mental illness, all of which were confirmed by other evidence. There were no obvious features of fantasy or reconstruction in GU's evidence. To the contrary, she expressly denied having had hypnotherapy and there was no evidence that she had.
The appellant has suggested that the level of detail given by GU is a factor that detracts from her credibility. It is submitted that it is inherently unlikely that a child aged 4 years to 8 years would have such a detailed memory. That is no more than an assertion and fails to pay proper regard to the nature of the incidents and the impact that GU said that they had upon her. It is not difficult to conceive that events of the type described would have had a vivid and lasting impression upon a young and vulnerable child.
The appellant has also submitted that it is unlikely that the appellant would commit offences of this nature when his wife and son were also present in the house. However, the evidence was that the offences always occurred at night after the children had gone to bed. There were frequent arguments between the appellant and his wife, RZ, after he came home from work. RZ said that she would often leave the house after such arguments and go walking for extended periods. SZ said that he was a heavy sleeper. If RZ stayed at home it is relevant to note that the parents' bedroom was upstairs and the stairs were wooden, such that it was possible for someone coming down the stairs to be heard. In any event it is not unknown for offenders who commit offences of this nature, particularly in a family context, to persist notwithstanding an obvious risk of discovery.
The three factors that the appellant particularly relies on, lack of complaint, lack of evidence to support the complainant and evidence of the appellant's innocence, must be seen in the context of the evidence given by the relevant witnesses and any explanations provided by GU. We will consider each of them in turn.
Failure to complain or delay in complaining
The appellant submits that the opportunities to complain in this case were exceptional. It is well-known, and accepted by the appellant, that victims of sexual abuse will often not complain at the time, that the absence of complaint does not necessarily indicate that the allegation is false and that there may be good reasons why a victim may hesitate or refrain from making a complaint. Thus, in assessing the significance of the failure or delay by GU to complain it is important to carefully consider the nature of the opportunities and the reasons she gave for not complaining.
At the time of the offending GU was aged between 4 and 8 years old and lived with the appellant, her mother and brother in the family home. As she said in evidence, at this age she loved her father, thought that she could trust him, was confused by the sexual abuse, and that it became normalized over time. She said that the appellant regularly gave her gifts after incidents of abuse and would tell her that he loved her and that she was his special girl. It is apparent from her evidence that as a young child she did not appreciate the wrongfulness of what was occurring or that there was a need to complain to anyone about it.
The suggestion that she could have complained to her mother or brother assumes that she appreciated the need to complain but also fails to take into account the family environment. There was significant marital conflict at this time: RZ and the appellant frequently argued and RZ often left the house to escape. RZ was burdened with her own personal difficulties and may not have been a readily available repository of confidence. As to SZ, he was himself a child at the time of the abuse, aged between 8 and 11 years old. There is nothing remarkable about GU not complaining to him.
As regards medical professionals, the appellant submits that it is significant that GU did not complain of sexual abuse to any of them given that they were often seeking to determine the causes of the physical and mental issues that GU suffered. The relevant witnesses in this regard were Dr Veling, Dr Paterson and Mr Relph.
Dr Veling was the family GP. He also treated other members of the family, including the appellant. As a child, GU attended on the doctor with one of her parents, usually her mother. There is no suggestion that GU ever had a particularly trusting relationship with Dr Veling, saw him on her own or viewed him as someone in whom she could confide.
GU did report the sexual abuse to Dr Veling as an adult, on her evidence when she was in her late teens, on his evidence when she was aged about 25. There is no real significance in the difference as to age as it is apparent from their accounts that they are referring to the same incident. On his own account, Dr Veling did not believe her and attributed the allegation to a desire on the part of GU to deny the appellant access to her daughter. It is not apparent why he believed that such a desire was inconsistent with the allegation being true. In any event he clearly formed an adverse view of GU and her motivations. In these circumstances it is unsurprising that GU never raised the matter with him again (other than when she unsuccessfully sought to obtain her medical records).
Dr Veling was a witness whose credibility was subject to challenge, on account of his response to GU's allegation of sexual abuse, his response to her request for medical records and because GU had made a complaint about him to AHPRA. That complaint remained unresolved at the time of the trial. Whilst he denied any bias against GU, it was open to the jury to form the view that he was not an entirely impartial witness. His view that the allegation made to him by GU was not true, though expressed by him in evidence as being a medical opinion, was of doubtful admissibility and the jury was entitled to give it little or no weight.
Mr Relph saw GU for seven counselling sessions in 1997 and a further six in 2003. The 1997 sessions were during the period of offending, the 2003 sessions were several years after the offending had ceased. He was careful to note that she was referred to him because of stomach pains, not due to any suspicions of sexual abuse. He found an adequate explanation for the stomach pains and other behavioural issues in the conflict between her parents. It is not apparent that he was informed of all of the health issues that GU suffered from the age of 4. He was also treating the appellant and RZ at the same time and explained this to GU.
The opportunity to complain to Mr Relph in 1997 was, thus, limited to seven counselling sessions that were focussed on parental conflict as the cause of GU's issues. The fact that he was also treating the appellant and RZ, and told GU that was doing so, might well have deterred her, a very young child who remained dependent on her parents, from revealing information which she had been keeping secret for several years.
The opportunity to complain to Mr Relph in 2003 was limited to six sessions, and again the focus was parental conflict as a likely cause of her behavioural issues. By this time GU was aged 14 and the sexual abuse had ended. That would remove any imperative to complain as a means of escaping the abuse. In any event, on her own account GU was not ready to complain at this point.
Dr Paterson saw GU for three admissions to hospital in 2003 and 2004. This was when GU was aged 14 to 15 years old, many years after the abuse had ended. She had opportunities to raise the issue of sexual abuse during these periods, including when it was specifically raised with her by Dr Paterson. In cross-examination, GU said that the reason she did not tell Dr Paterson (or anyone at the hospital) about the sexual abuse was because at that stage she had not been able to tell medical professionals about the abuse: she would be going home to her parents and was afraid of the appellant, who she said controlled her. She said that she was not strong enough to talk to someone about the abuse at that point in her life.
GU said in evidence that she waited a long time before telling any adults about the sexual abuse because she needed to get to a point within herself where she was able to verbalise what had happened. She said that was difficult because there was much shame and embarrassment attached to what had happened. She also said that complaining had also been difficult because she was for many years dependent on the appellant and controlled by him. This evidence provided a credible explanation for the failure to complain, or the delay in complaining. It was open to the jury to accept these explanations and to give little weight to delay.
Lack of evidence to support the complainant
It is not unusual for cases of historic sexual offending involving children to depend critically on the evidence of the complainant and for there to be no other direct evidence of a corroborative nature. It is usually of the nature of such offending that it occurs in privacy and that secrecy is maintained. Furthermore, the lapse of time usually means that forensic evidence will not be available. The appellant accepts this but submits that the absence of supporting evidence in this case is significant.
It is too simplistic to assert that RZ noticed nothing untoward. Whilst she did not suspect sexual abuse at the time, this needs to be understood in the context that she was married to the appellant and engaged in on-going and highly distressing marital conflict. She was, however, able to confirm circumstances that GU had referred to in evidence. These included that GU saw specialists for abdominal pain, that she displayed anxiety as a young child, that she had depression as a teenager and that there were suicide attempts. RZ also said that GU had urinary tract infections and constipation and that she noticed redness in the area of GU's genitals and in GU's anal region.
It is true that RZ did not notice anything suggestive of significant injury. The appellant submits that the nature of the acts of penetration and the pain described by GU are such that injury would be expected in a child. There was, however, no expert evidence one way or the other in that regard.
SZ was himself a child at the relevant time, so the fact that he did not suspect sexual abuse of GU is of little significance. He did, however, confirm circumstances that GU had referred to in evidence. These included hearing the appellant snoring in GU's room, GU refusing to shower, GU wanting to sleep in his bedroom, GU refusing to be touched or hugged by the appellant from about the age of 12, and the appellant stripping down to underwear when he came home from work.
The submission that the sexual abuse 'inexplicably' stopped when GU was 8 has to be viewed in context of the evidence. The fact that GU couldn't advance a reason why the abuse stopped is irrelevant, the appellant may have had some reason unknown to her. In any event there are obvious indications in the evidence as to why that might have happened, not least that GU was getting older and would be expected in the normal course to start becoming aware of issues around sexuality. Other factors that may have influenced this decision are that GU began to resist (count 17), began to question the appellant's rationalizations for his behaviour (count 18) and began to show obvious distress (counts 19 and 20).
The absence of evidence of sexual assault in Dr Veling's records is only correct to the extent that there is no evidence of injury that can be unequivocally attributed to sexual assault. However, there was evidence of GU having suffered urinary tract infections, constipation and abdominal pain and of her mother reporting redness in the genital region. There was no evidence in the notes that Dr Veling had ever undertaken an intimate examination (though GU said that she believed he had once taken a pap smear, presumably when she was significantly older).
The other relevant evidence given by Dr Veling was in regard to the consultation on 14 July 1994. That consultation was not with Dr Veling, but with a colleague, Dr Wilson, who was not a witness. The notes of this consultation include reference to 'no labial breakdown. Urethral swab done'. In the absence of evidence from Dr Wilson as to what he saw and what this note means, Dr Veling provided his own views. If Dr Veling was correct as to his interpretation of the notes, then the observation was inconsistent with penetration having occurred. However, it was open to the jury to consider that note in the light of all the other evidence. Furthermore, if GU had not experienced penetration of her vagina as at 14 July 1994 that was not necessarily inconsistent with the prosecution case. GU could not place definite dates on most of the incidents and the dates of the vaginal penetration offences (counts 1, 6, 7, 9, 10, 11, 13, 15 and 17) allowed for the possibility that they had occurred after that date.
Mr Relph did not form a clinical picture that GU had been sexually assaulted based on the features that she described to him. The qualification inherent in this assessment is that when GU saw Mr Relph, both in 1997 and 2003, she was not yet prepared to reveal the sexual abuse. Nor was it something he was looking for, the referral not having raised this possibility. When asked about other factors that could be indicative of sexual abuse, all of which were present at some time with GU, he accepted that the combination of them would raise 'thoughts' in the direction of sexual abuse. The contact with Mr Relph did not involve a definitive assessment that GU had not suffered sexual abuse as a child and did not exclude it as a possibility.
Dr Paterson never had a strong suspicion that there was a possibility of sexual abuse, but, as has been earlier noted, he did not see GU at the time of the alleged abuse. He did specifically raise the issue with GU and ruled it out. Clearly in doing so he was placing reliance on what GU told him, but this was at a time when GU was unwilling to reveal the abuse for the reasons that she gave in evidence. Even so, Dr Paterson accepted that he could not exclude the possibility that abuse had occurred. Of course, any assessment by him was based only on his contact with GU in 2003 and 2004. He did not, and indeed could not, advance an opinion on whether on the evidence before the jury it could be concluded that sexual abuse had not occurred.
The hospital notes that record that GU told hospital staff she had no memories prior to age 6 or 7 were put to GU and she denied that she had ever lacked memory of that period of her life. She could not recall saying such things. Even if she had said it, at best it would be a prior inconsistent statement going only to credibility. It could not prove that she had a lack of memory at any earlier time, only that she said that she had. The significance of this has to be seen in the context that GU was 14 or 15 at the time, not prepared to reveal the sexual abuse, had been admitted to hospital at a time when she was abusing prescription drugs and alcohol and was disposed to make claims out of bravado (such as whether she had used illicit drugs). It was open to the jury to conclude that this inconsistency either did not exist or was not significant.
It was accepted by GU that she continued to associate with the appellant until 2013, however she rejected any inference from that that she was comfortable with him, or that the abuse had not occurred. According to GU she felt under an obligation to continue to associate with the appellant and was only able to break with him as she became psychologically stronger. She maintained that the contact was limited and that she did not allow the appellant to have unsupervised access to her daughter. These were not explanations that were inherently improbable. It was open to the jury to accept those explanations.
GU accepted that in notes she had prepared in therapy in 2009 she had referred to sexual abuse, but not specifically mentioned being penetrated. The significance of this has been overstated. GU said that the notes were prepared for herself, not for the purposes of informing someone else of what occurred. She rejected any suggestion that she had added allegations of penetration at a later time and said that she had always had a memory of those acts.
The text exchange between GU and a former friend was of very limited relevance. The texts from GU only revealed an attempt by her to find out whether the friend had any recollection of anything that could assist the prosecution. The friend's final response regarding the appellant was nothing more than an unsworn opinion as to the appellant's good character. It was not evidence that the jury could properly give any weight to. Far less could they do so in circumstances where it was apparent that the appellant had been assisting the friend financially.
Evidence supporting innocence
The matters raised under this heading all relate to post-offence conduct. In essence the argument is that because the appellant made no admissions and consistently denied his innocence this is evidence that weighs strongly against that of the complainant. Of course, it is common for those who commit serious crimes, particularly of a sexual nature, to consistently and convincingly deny them even in private communications with the victim.
The pretext call of 21 April 2018 was undertaken for the purposes of attempting to elicit an admission from the appellant. The effectiveness of this investigative tool depends on the recipient of the call being unaware of police involvement. The appellant says that he was simply happy to receive a communication from GU after a long hiatus. He said he did not suspect police involvement even though he had been aware for some years that GU had made allegations to other members of the family that he had touched her. The subsequent text message and parcel were consistent with the appellant's responses in the pretext call. It was open to the jury not to accept that the responses of the appellant were entirely spontaneous and honest.
The appellant voluntarily participated in the police interview and maintained his innocence. There is nothing remarkable in that. Nor is there anything remarkable in the fact that the appellant gave evidence at the trial to the same effect. The jury had the very considerable advantage of seeing the appellant give his evidence and it was open to them to reject it.
The good character evidence of the appellant was relevant in assessing the likelihood that the appellant would have committed the offences and in considering his credibility as a witness. The principles regarding the use of character evidence have been recently set out in PYN v The State of Western Australia[268] and need not be repeated. The courts have recognised that sexual offending by adults of previously unblemished reputations, and who appear to their friends, relatives and business and social acquaintances to be of impeccable character, is all too frequently found to have occurred.[269] In this case the jury had the very significant advantage of seeing and hearing the appellant give his evidence including evidence under cross‑examination. It was for the jury to decide upon the weight to be given to the opinions of the character witnesses having regard to the jury's impressions of the appellant in the witness box and the jury's assessment of the cogency of his evidence. It was open to the jury to conclude that the character evidence could only be accorded modest weight in deciding whether they were satisfied beyond reasonable doubt that the appellant committed the charged offences.
[268] PYN v The State of Western Australia [2020] WASCA 116, [119] ‑ [120].
[269] PYN [128].
Conclusion
The significance of many of the matters raised by the appellant depends on an assessment of the explanations given by the complainant for the delay in complaining and her conduct towards the appellant. The jury in this case were exceptionally well-placed to make that assessment. The jury had the very considerable advantage of seeing and hearing both the complainant and the appellant give evidence. That advantage is capable of resolving any doubt that could arise from the matters raised by the appellant.
The matters raised by the appellant do not, either individually or collectively, support a conclusion that it was not open to the jury to be satisfied beyond reasonable doubt that the evidence of the complainant was truthful and reliable. It was open to the jury to accept the evidence of the complainant and reject that of the appellant.
The trial record does not require the conclusion that the jury must necessarily have entertained a reasonable doubt about the appellant's guilt on the charged offences. The verdicts of guilty were not unreasonable. They were supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw.
The matters relied upon by the appellant do not persuade us that the jury, acting reasonably, should have decided that the State had not proved guilt beyond reasonable doubt. Our assessment of the matters complained about by the appellant in the appeal, including the challenges to the honesty, credibility and reliability of GU, does not persuade us that the jury, acting reasonably, should have decided that the State had not proved the charged offences to the criminal standard.
After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the very significant benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on the charged offences or as to the correctness of his conviction on those charges. It would not be dangerous, in the circumstances, to permit the verdicts of guilty to stand.
For the above reasons, whilst we would grant leave to appeal, we would order that the appeal be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate
1 APRIL 2022
2