Lawrence Owens (a pseudonym)[1] v The Queen
[2015] VSCA 352
•18 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0100
| LAWRENCE OWENS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P, PRIEST JA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 October 2015 |
| DATE OF JUDGMENT: | 18 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 352 |
| JUDGMENT APPEALED FROM: | DPP v [Owens] (Unreported, County Court of Victoria, Judge Lacava, 1 May 2015) |
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CRIMINAL LAW – Appeal – Conviction – Six charges of child sexual offences against one complainant – Inconsistencies in complainant’s evidence – Inconsistencies between complainant’s evidence and the evidence of other witnesses – Whether convictions unsafe and unsatisfactory – Statements made by complainant to psychologist – Whether capable of being used as evidence of consistency – Whether jury properly directed on use of the psychologist’s evidence – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Phillips | Victoria Legal Aid |
| For the Respondent | Mr D Trapnell QC | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P:
I agree with Beale AJA.
PRIEST JA:
I also agree with Beale AJA.
BEALE AJA:
Overview
On 28 January 2015, the applicant was found guilty by a jury of six sexual offences committed between 1991 and 1992 against his former partner’s son, who was 11 or 12 years of age at the time. The trial judge directed an acquittal on charge 6, which was a charge of sexual penetration of a child under the age of 16, as there was no evidence adduced from the complainant in relation to that charge. Following a plea on 1 April 2015, the applicant was sentenced on 1 May 2015 as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Indecent assault [Crimes Act 1958 s 44(1)] | 5 years | 2 years | Nil |
| 2 | Taking part in an act of sexual penetration with a person of or above the age of 10 but under 16 [Crimes Act 1958 s 48(1) and (3)] | 15 years | 4 years | 2 years |
| 3 | Indecent act with a child under 16 [Crimes Act 1958 s 47(1)] | 10 years | 2 years | Nil |
| 4 | Taking part in an act of sexual penetration with a child under 16 [Crimes Act 1958 s 45(1)] | 15 years | 4 years | 6 months |
| 5 | Attempted sexual penetration with a child under 16 [Crimes Act 1958 s 45(1) and 321M] | 10 years | 3 years | Nil |
| 7 | Taking part in an act of sexual penetration with a child under 16 [Crimes Act 1958 s 45(1)] | 15 years | 5 years | Base |
| Total Effective Sentence: | 7 years and 6 months imprisonment | |||
| Non-Parole Period: | 5 years | |||
| Pre-sentence Detention Declared: | 93 days | |||
| Other orders: Forensic order, sentenced as a serious sexual offender pursuant to s 6F Sentencing Act 1991, placed on the Sex Offenders Register with a life reporting period pursuant to s 34 of the Sex Offenders Registration Act 2004. | ||||
Proposed Grounds of Appeal
The applicant seeks leave to appeal against his convictions on two proposed grounds:
1.The convictions on all charges are unsafe and unable to be supported by the evidence in that the complainant’s evidence (which was the only evidence of the offending) was incapable of acceptance beyond reasonable doubt because of the substantial inconsistencies between the various accounts given by complainant, and the inconsistencies between the complainant’s account and the unchallenged evidence of other Crown witnesses.
2.The trial miscarried because the learned trial judge directed the jury they could consider the content of the disclosures to Ms Masters [a psychologist] as evidence of consistency on the part of the complainant.
Prosecution Case
The prosecution case was that in approximately 1991, the applicant (who was 35 or 36 years of age at the time) met the complainant’s mother through mutual friends. They began a sexual relationship. Eventually, the applicant moved in with the complainant’s mother and the complainant for a period of about six weeks. The complainant was aged 11 or 12 at that time. The complainant’s mother, who worked shifts as a nurse in aged care, would leave the complainant in the care of the applicant. On the prosecution’s case, two separate incidents occurred when the applicant was minding the complainant. At trial, they were referred to as the ‘darts incident’ and the ‘cricket incident’.
In relation to the darts incident, the applicant took the complainant to a pub where the applicant drank alcohol and played darts. When they returned home, the complainant went to his bedroom. The applicant entered the complainant’s bedroom and held what the complainant described as a ‘butter knife’ against the complainant’s stomach and compelled him to go with the applicant to his mother’s bedroom. There, the applicant compelled the complainant to undress them both. The applicant grabbed hold of the complainant’s hand, placed it on the applicant’s penis, and made the complainant rub his penis with his hand (Charge 1 – indecent assault). The applicant then inserted his penis into the complainant’s mouth and penetrated his mouth for a period of time whilst holding the complainant’s head with his hands (Charge 2 – sexual penetration of a child between 10 and 16).
In relation to the cricket incident, the applicant took the complainant to one of the applicant’s games of cricket. Following the game, they went to a pub where the applicant drank alcohol. After they returned home, the applicant obtained a wooden spoon, which he held against the complainant’s stomach in the lounge-room, demanding that the complainant go with the applicant to his mother’s bedroom. The complainant was required to undress the applicant and the applicant partially undressed the complainant. The applicant pushed the complainant onto the bed and caused the complainant to masturbate him (Charge 3 – indecent act with child under 16). The applicant forced the complainant’s head down to the applicant’s penis and inserted his penis into the complainant’s mouth (Charge 4 – sexual penetration of a child under 16). The applicant then lay on his side behind the complainant in a spooning position and unsuccessfully attempted to penetrate the complainant’s anus with his penis (Charge 5 – attempted sexual penetration of a child under 16). The applicant then got the complainant to kneel on the bed and penetrated the complainant’s anus with his penis from behind (Charge 7 – sexual penetration of a child under 16).
The evidence
The prosecution relied entirely on the complainant for evidence of the alleged acts. The complainant gave evidence in relation to each of the incidents consistent with the outline above. In relation to the darts incident, he also said that the applicant ejaculated when the complainant was rubbing his penis prior to him sucking the applicant’s penis. The complainant also said that after he had sucked the applicant’s penis, the applicant attempted to penetrate his anus with his penis. That alleged attempt was not the subject of any charge and was treated as context evidence. In relation to the cricket incident, the complainant said that, after the anal penetration, the applicant ejaculated on his back.
The complainant said that when he was 18 years old he had tried to tell his mother about the incidents but she did not believe him. He said he did not go into detail with his mother about what the applicant had done to him.
In cross-examination, the complainant was taken to his police statement, his evidence at committal and to notes made by a psychologist, Ms Masters, whom the complainant saw in early 2012. The cross-examiner drew attention to inconsistencies between what the complainant had said, or allegedly said, about the sexual abuse on these previous occasions and what he had said during the trial. I will return shortly to these alleged internal inconsistencies and their significance.
It is convenient to note at this point that in Ms Masters’ notes of her sessions with the complainant, there was mention of the applicant having been sexually abused when he was ‘11 to 14 years’ but the abuser was not named. Rather, the notes referred to the abuser as the applicant’s ‘step father’ or ‘step dad’. The complainant indicated under cross-examination that he would never have referred to the applicant in that way. Nor had he said to the psychologist that he was sexually abused from ‘11 to 14 years’. He agreed that he had said some of the things recorded in Ms Masters’ notes, including that he attended [W] Secondary College and that he went to school ‘smelling of cum’.
The complainant’s mother gave evidence. She recalled that her son would have been 11 or 12 at the time she met the applicant and that she believed it was in mid-1992, but said she couldn’t be exact because it was a long time ago. The complainant’s mother recalled that the applicant played darts regularly and was an active cricket player. She gave evidence that she thought the applicant had lived with her, and the complainant, for about four to six weeks at most, and that while she thought the relationship between the complainant and applicant was okay at the beginning, the applicant became very abusive towards the complainant. She recalled that the complainant had told her that he hated the applicant and wanted him out of the house.
The complainant’s mother said she couldn’t remember her son complaining to her that the applicant had sexually abused him. She agreed that at no stage had the complainant referred to the applicant as his stepdad but said that there were two other males, including her second husband, to whom the complainant may have referred as his stepdad.
Ms Masters was called to give evidence at the request of defence counsel, a forensic choice that was perilous. Ms Masters gave evidence that the complainant had been referred to her for counselling. The referral was in respect of social and workplace problems that the complainant was experiencing, not because of sexual abuse. She had her first appointment with him in January 2012. During the counselling, the complainant indicated that he had suffered sexual abuse as a child, involving oral and anal penetration. Ms Masters accepted that her notes were not intended to be a verbatim account of what she was told by clients, but an aide mémoire. She gave evidence that her practice was, approximately 50 per cent of the time, to write the actual words and sentences said by clients and, approximately 50 per cent of the time, to write her own interpretation of certain things. She said that things written in inverted commas would have been said by the client directly.
With reference to her notes regarding the complainant, she said that notes which read ‘sexually abused 11 to 14 years, stepdad’ were in her words and that ‘treated like shit’, ‘stronger than me’, ‘useless waste of space’ and ‘smelt of cum’, which were each written in inverted commas, were the complainant’s words.
A Record of Interview conducted with the applicant on 19 December 2012 was played to the jury and tendered through the informant. The informant confirmed that the initial complaint to police was made in early June 2012.
The applicant did not give or call evidence. He relied on what he said in his Record of Interview which was to the effect that none of the alleged acts had occurred.
Proposed Ground 1
Under proposed ground 1, the applicant submits that the convictions are unsafe and unsatisfactory. He relies on inconsistencies in the various statements made by the complainant about the events in question (internal inconsistencies) and inconsistencies between the complainant’s accounts and that of other witnesses (external inconsistencies).
In R v Klamo,[2] Maxwell P conveniently summarised the relevant legal principles where a conviction is said to be unsafe and unsatisfactory:
[2](2008) 18 VR 644, 653–4 [38]–[40] (citations in original).
The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps: [3]
[3]M v The Queen (1994) 181 CLR 487, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 451–2 (Gaudron, McHugh and Gummow JJ); Weiss v The Queen (2005) 224 CLR 300, 316 [41] (The Court); R v Tiburcy [2007] VSCA 124 [5] (Nettle JA).
1.The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2.In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3.In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4.It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged – as distinct from entitled – the jury to come to a different conclusion. In Libke v The Queen,[4] Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the “unsafe and unsatisfactory” ground:
… But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[5] It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[6]
In other words, the question posed in M v R,[7] namely,
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?
requires the court of criminal appeal to decide
…whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.
To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a “solid obstacle to reaching a conclusion beyond reasonable doubt”[8] or whether, instead, the “path to a conviction was open”.[9]
[4](2007) 235 ALR 517, 546 [113].
[5]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ).
[6]See also R v Tiburcy [2007] VSCA 124 [17] (Vincent JA).
[7](1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
[8]R v Shah [2007] SASC 68 [4] (Doyle CJ).
[9]Morabito v The Queen [2007] NSWCCA 126 [34] (Mason P).
Submissions
In his written submissions, the applicant listed some 16 categories of alleged internal inconsistences, most relating to the darts incident but some relating to the cricket incident. Under each category, the applicant set out the alleged inconsistencies, either quoting or giving the substance of what the complainant said in his police statement, at committal or at trial. I do not propose to go into the details supplied under each category, save for those which I have italicised, being those nominated by the applicant in oral submissions as the most significant inconsistencies (categories (i), (j), (n) and (o)). The 16 categories of internal inconsistencies as described by the applicant were:
Darts incident
(a)How many people were at the pub that evening.
(b)The complainant’s clothing immediately prior to the alleged offences.
(c)How the complainant and the applicant undressed.
(d)Whether the applicant threatened the complainant initially.
(e)Why the complainant did not say to the applicant ‘let’s talk here’ at the point referred to in (d).
(f)How the complainant got from his bedroom to his mother’s bedroom.
(g)What was said at the start when both parties were in the mother’s bedroom.
h)The complainant did not say in his statement that the applicant attempted anal penetration during the darts incident.
(i)Whether oral penetration took place.
•Statement - the applicant inserted his penis into his mouth.
•Committal - the applicant attempted oral penetration but the complainant would not let him.
•Trial - the applicant didn’t just try to penetrate the complainant’s mouth, he actually did.
(j)When and where the applicant ejaculated.[10]
[10]The complainant was not asked for and did not give an explanation for the inconsistency between his evidence at trial and what he said to police.
•Statement - the applicant ejaculated in the complainant’s mouth.
•Committal - the applicant ejaculated onto the complainant’s hand.[11]
[11]Although the trial judge referred to what the complainant said about this matter at committal, evidence of what the complainant had said about this matter at committal does not appear to have been adduced at trial.
•Trial - the applicant ejaculated when the complainant was stroking the applicant’s penis.
(k)Whether the complainant was threatened after the darts incident.
Cricket Incident
(l)How the complainant and the applicant undressed.
(m)How oral penetration occurred.
(n)The duration of the alleged act of penile/anal penetration.[12]
[12]The complainant was not asked for, and did not give, an explanation for the inconsistencies.
•Statement - he could not recall how long it went for.
•Committal - half an hour or forty five minutes.
•Trial- he initially agreed he did not remember how long it went for and then said it was forty five minutes.
(o)Whether ejaculation occurred
•Statement – the complainant said nothing about the applicant ejaculating.[13]
•Committal – initially he said that the applicant ejaculated into the complainant’s mouth and tried to make him swallow it but he spat it out. Then he agreed that having ejaculated once the applicant would not have ejaculated again. He then said he ejaculated on his back.
•Trial – the applicant ejaculated on the complainant’s back and he agreed he said nothing to the jury about swallowing it.
(p)What the complainant told his mother about the two incidents.
[13]This is an error. The complainant told police that the applicant had ejaculated onto his back during the cricket incident.
The applicant also relied on external inconsistencies, that is, alleged inconsistencies between the complainant’s account and the evidence of other witnesses about particular topics. The topics were:
(a)The type of shifts the complainant’s mother worked.
(b)When the complainant’s mother and the applicant were in a relationship.
(c)The complainant’s age at the time of the alleged offences.
(d)The complainant telling Ms Masters that he ‘went to school, smelled of cum’.[14]
(e)the complainant telling Ms Masters that the offender was his ‘stepdad’.
(f)the complainant telling Ms Masters the offending took place whilst he was at ‘[W] Secondary College’.
[14]The point here was that the complainant said the two incidents occurred on a Friday and a Saturday night and that he showered after both incidents. He would therefore not have smelled of ‘cum’ when he went to school on the Monday after each incident.
In summary, the applicant submitted that the number and quality of the internal and external inconsistencies should have caused the jury to entertain a reasonable doubt as to his guilt on all charges.
The respondent submitted that the inconsistencies identified by the applicant were mainly about peripheral or inconsequential matters and that it remained open to the jury to be satisfied of the applicant’s guilt to the criminal standard. The complainant was 11 or 12 years old at the time of the alleged offences and, when giving his accounts in his police statement, at committal and at trial, was recalling matters that happened 20 or more years ago. To the extent that there were inconsistencies in his various accounts, these did not preclude the jury from finding him to be a credible and reliable witness as to the alleged offending acts. The complainant also gave some explanation for some of the inconsistencies, including that he had been confused and that he had depression and anxiety. As regards the external inconsistencies, the applicant’s mother was vague in parts and this did not bar the jury from accepting the complainant’s evidence about when the abuse occurred. As for the evidence of Ms Masters, her notes were not a verbatim record of what the complainant told her. She may have misunderstood or misinterpreted certain things.
Analysis
During oral submissions in this court, the applicant acknowledged that not all of the internal inconsistencies were particularly significant. That is apparent from a perusal of the categories of inconsistencies listed above. For example, whether the complainant said inconsistent things about the number of people at the pub prior to the darts incident is neither here nor there.
The applicant nominated only four out of the 16 categories as being very significant, namely categories (i) and (j), which related to the darts incident, and categories (n) and (o), which related to the cricket incident. In relation to three of these four categories, one can readily understand a reasonable jury not attaching much significance to inconsistent statements regarding when and where the applicant ejaculated during the darts incident (category (j)), the duration of the anal penetration during the cricket incident (category (n)), or whether ejaculation occurred during the cricket incident (category (o)), given that the complainant was recalling events that occurred when he was only 11 or 12 years of age, that is, at least 20 years prior to his police statement.
The applicant nominated as the most significant internal inconsistency category (i), that is, inconsistent accounts as to whether oral penetration took place during the darts incident. It is true that the complainant failed to satisfactorily explain why he said at the committal that there was only attempted oral penetration during the darts incident but, when challenged at trial, he did not resile from his evidence in chief that actual penetration occurred. Further, his evidence at trial on this point was consistent with what he told police in his statement and the jury were made aware of this fact during cross-examination. It was open to the jury to view this prior consistent statement as buttressing his credit. The test in relation to an unsafe and unsatisfactory ground is a stringent one. A jury might have entertained a reasonable doubt about charge 2 based on the prior inconsistent statement at the committal but, in my view, it was not bound to do so.
As for the external inconsistencies, the applicant placed particular reliance on alleged inconsistencies between the complainant’s evidence and the notes of what he had told his psychologist, Ms Masters, whom he first saw in January 2012. For example, Ms Masters had noted that the complainant told her he was abused by his ‘step dad’. This was a term which the complainant, and his mother, said he never used in relation to the applicant. But Ms Masters acknowledged that ‘stepdad’ was her word, not the complainant’s. Similarly, Ms Masters acknowledged that where she had noted ‘sexually abused 11 to 14 years’ it was her interpretation of what the applicant had told her, not a verbatim record.
Ms Masters acknowledged that, during the relevant session with the complainant, he was speaking quickly and emotionally and that she did not take detailed notes. Ms Masters said the reference to [W] Secondary College and the complainant going to school smelling of ‘cum’ were the complainant’s words, which the complainant confirmed under cross examination. But Ms Masters may have misinterpreted the reference to secondary school as setting the time frame during which the sexual abuse occurred. The complainant’s statement to Ms Masters that he went to school ‘smelling of cum’, was inconsistent with his evidence that he showered immediately after each incident, and that the incidents occurred on a Friday and Saturday night. But this inconsistency, in my view, did not preclude the jury from accepting the complainant as a credible and reliable witness regarding the alleged offending acts: the jury could have viewed it as no more than a mistaken but genuine memory resulting from the traumatic nature of the abuse.
Accordingly, I would refuse leave to appeal on proposed ground 1.
Proposed Ground 2
It will be recalled that proposed ground 2 complains that ‘the trial miscarried because the learned trial judge directed the jury they could consider the content of the disclosures to Ms Masters as evidence of consistency on the part of the complainant’.
The applicant also submits that the trial judge erred in not giving the jury the following directions:
a.that they could only use [Ms Masters] evidence as evidence of consistency if they were satisfied beyond reasonable doubt that, despite the obvious inconsistencies between the version he was now giving and the evidence of his mother in relation to matters such as the non- description of the Applicant as his stepfather, his age at the time of the abuse, reference to being at secondary school, attending school smelling of cum and the abuse lasting for years, and these matters being relevant to the assessment of his credibility, the complainant was referring to the Applicant in regard to what he told Ms Masters and;
b.If they considered it was reasonably possible that the complaint to Ms Masters was not about the Applicant, that that was also relevant to the assessment of the complainant’s credibility.
The relevant portion of the trial judge’s charge was as follows:
Members of the jury, in this case you heard evidence that the complainant told the psychologist, Ms Masters, in - I think it was 2011, may have been 2012 - that he had been sexually abused by his step-dad and you have been addressed by counsel about that. She made notes in her records that he told her that this occurred 12 to 13 or 15 to 16 years (sic).
When considering this evidence of what the complainant said to Ms Masters, you can use this evidence to assess the credibility of the complainant. The fact that the complainant told her what he did and the content of that - of what he told her - may show that his account of the events in question has been consistent.
Mr O’Doherty in his final address to you said that you should find that it was consistent. That he told her that he had been abused by his step-dad and when she gave evidence she made a note of some things which I understand that the prosecution ask you to rely upon as evidence of some consistency and I just want to briefly take you to that.
She said that the complainant had been referred … for some counselling ... She was asked what was the purpose of the referral and what was the issue and she said the issue at that stage was he was experiencing social and workplace problems and he was having difficulty getting along with his workmates and also just making friends generally in the community ... She says she saw him in January 2012.
She said, “[the complainant] said to me that he had basically he felt that because of abuse as a child he was struggling with social and work issues currently in his adult life. He explained that he had been abused by his step-father when he was 12, 13 years old. He gave detail, quite exclusive details around that which I probably did not note as well as I should have”. She said she wrote down what he said but not in detail, not in extensive detail. She said he was speaking quite quickly and quite emotionally. She was asked…. “Did you get any detail of what the nature of the sexual abuse he was talking about was?” She said, “Yes I did”. “What was that?” “Um, so anal penetration by his step-father and oral penetration and also that he would attend school, um, smelling like he had semen on him and also quite sort of physical abuse other than sexual abuse, so sort of hitting and that sort of thing”.
When she was cross-examined, she was asked about what she had in her notes and Mr Payne cross-examined her about a number of matters which you will recall he referred to in his address to you a short time ago, which make it very clear that [the complainant] could not have been, on his submission to you, speaking about the accused. She said she noted that the abuse was - he had been sexually abused when he was 11 to 14 years. He says that does not fit with the evidence of [the complainant]. She noted, “Step-dad stronger than me”, “Tortured/brutal” and that it occurred at school, [W] Secondary College. “Went to school smelled of cum”.
You will remember the matters that Mr Payne recently put to you, that they were evidence, as he submitted to you, completely inconsistent with it being the accused who was the person that the - that [the complainant] could have been speaking about.
As I indicated to you, it is a matter for you to determine whether or not you think that what the complainant said to Ms Masters is consistent with the evidence that he now gives. The fact that the - that he said what he said to Ms Masters and the content of that may show that his account of events in question has been consistent but it is a matter for you as to whether or not you think it is.
In addition, his evidence may rebut an argument that there was an absence of complaint. That is not really available here because it too was given only in 2012, at least on any view, 20 years after these events, it can hardly be said that there was a recent complaint. It was certainly a very late one.
This evidence, you have got to remember when assessing it, is evidence given by the complainant to Ms Masters. It comes from the complainant. It is not independent evidence because the complainant is the source of the evidence. You may use the evidence of what the accused said to Ms Masters in the ways I have described, that is, that you can use it to show consistency in the evidence that he has given here in court, but it is your assessment of the credibility of the complainant that matters. But you must not mistake that evidence for being independent evidence of the offence. It is not independent evidence. It comes directly from the complainant even though the evidence is given by Ms Masters. Do you follow that? In other words, she is just repeating what it is that he said to her. (underlining added)
Defence counsel took no exception to this part of the charge. Nor did defence counsel request the directions that the applicant now submits should have been given.
Submissions
The applicant submitted that, due to the inconsistencies between the complainant’s evidence of the abuse and the evidence of what he told, or allegedly told, Ms Masters during counselling, the evidence of what the complainant said to Ms Masters was incapable of showing consistency. The applicant highlighted the fact that Ms Masters had recorded in her notes that the complainant told her he was abused, (a) by his step dad, (b) from the ages of 11 to 14, (c) when he was a student at [W] Secondary College, and that he went to school smelling of cum. It was submitted that the account of abuse to Ms Masters could not refer to abuse perpetrated by the applicant.
The respondent submitted that Ms Masters’ notes (recording that the complainant said he had been orally and anally penetrated as a boy) were consistent with the complainant’s evidence. It was open to the jury to view some of the alleged inconsistencies as the product of deficiencies in Ms Masters’ note taking. Her note recording that the complainant was abused from the age of 11 to 14 by his stepdad was not in the complainant’s words but was Ms Masters’ interpretation of what he told her, when he was emotional and talking quickly. Even if the jury found there were inconsistencies, they were not of such a magnitude, considered separately or in combination, that the jury was precluded from regarding the complainant’s disclosures of sexual abuse to Ms Masters as showing consistency.
The trial judge’s directions indicated that it was for the jury to decide whether what the complainant said to Ms Masters was consistent or inconsistent with his evidence. The jury were directed that this was relevant to the assessment of the complainant’s credit. The trial judge drew attention to the defence argument that the complainant’s statements to Ms Masters were entirely inconsistent with his evidence.
Analysis
In his evidence in chief, the complainant was asked, without objection, whether he had ever discussed the relevant incidents with anybody. He said:
Um - just my psychiatrist and psychologists. I haven’t actually gone into full description with them, no. I’ve just talked to them about my depression.
The next day, under cross-examination, he was asked the following questions and gave the following answers:
Just to finish up...You gave evidence yesterday that you’d seen a psychologist?---Yes.
That’s indeed a Chantal McMasters?---Yes.
You first saw her in January 2012?---Yes.
You went to see her to tell her aspects about your past?---Yes.
And some issues that you were having?---Yes.
You recall that in the first interview you had with her that she was in fact taking notes?---Yes.
I presume you’d never seen those notes?---No I haven’t.
When you spoke to her you had no reason not to tell her the truth, did you?---No.
Pointless?---Yes.
Seeking someone’s assistance and not telling them the truth?
---Yes.
I’m going to read to you… some extracts from those notes. “Sexually abused 11 to 14 years”. Did you tell her that?---No, I don’t remember saying that, no.
Do you dispute that you would have said that to her?---No I don’t dispute that.
I’ll read that again with a bit at the end, an extra bit. “Sexually abused 11 to 14 years. Step-dad”. Did you say that to her?---No I didn’t.
You dispute that?---Yes I do.
“Stronger than me, tortured, brutal”. Did you say that to her?---Yes.
“[W] Secondary College”?---Yes.
Did you say that to her?---Yes I did.
“Went to school, smelled of cum”. Did you say that to her?
---Yes I did.
Just to be certain, to back track you say the darts incident was a Friday night and the cricket incident’s a Saturday night?---Yes.
You wouldn’t have gone to school on Sunday, would you?---No.
“Anger at step-father, influenced impact on his life”. Did you say that to her?---No I didn’t.
It was never put to the complainant by defence counsel that he was telling Ms Masters about some other abuser. It was open to the jury to find that the complainant was impliedly asserting in his evidence that he told Ms Masters about sexual abuse perpetrated by the applicant. What he told Ms Masters was consistent with his testimony insofar as he told Ms Masters that the person who abused him when he was a boy had penetrated him both orally and anally.
As for the applicant’s complaint about the trial judge’s failure to give certain jury directions, the applicant’s trial was governed by the Jury Directions Act2013. Pursuant to ss 13 and 15 of that Act, the trial judge was not required to give the jury a direction that had not been requested, unless it was necessary to avoid a substantial miscarriage of justice.
No request was made by defence counsel for the trial judge to give the directions it is now said he wrongly failed to give. It was not necessary for the trial judge to give such directions to avoid a substantial miscarriage of justice. It would have been self-evident to the jury that they could not view what the complainant said to Ms Masters, about having been sexually abused as a boy, as bolstering his credit unless they considered that he was referring to the applicant.
I would refuse leave to appeal against conviction on proposed ground 2.
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