Mane v The King
[2022] VSCA 270
•8 December 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0109 |
| TUSHAR MANE | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST, T FORREST and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 November 2022 |
| DATE OF JUDGMENT: | 8 December 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 270 |
| JUDGMENT APPEALED FROM: | Unreported, County Court of Victoria, Judge Marich, 14 July 2022 |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of three charges of indecent act with a child under 16 – Applicant acquitted of three charges of indecent act with a child under 16 – Whether guilty verdicts inconsistent with acquittal verdicts – Whether guilty verdicts cannot be supported having regard to the evidence – Appeal allowed – Verdict of acquittal ordered on one charge – New trial ordered on two charges.
M v The Queen (1994) 181 CLR 487; Mackenzie v The Queen (1996) 190 CLR 348; Pell v The Queen (2022) 268 CLR 123; MFA v The Queen (2022) 213 CLR 606; Danise v The Queen [2022] HCA 25; Arbogast v The Queen [2022] VSCA 143 and Landale (a pseudonym) v The Queen [2022] VSCA 121 referred to.
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Counsel | |||
| Applicant: | Mr J Manning | ||
| Respondent: | Mr P Bourke KC | ||
Solicitors | |||
| Applicant: | Melasecca Kelly & Zayler | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
T FORREST JA
TAYLOR JA:
After a seven day trial in the County Court, the applicant was convicted of three charges of indecent act with a child under 16 (charges 1, 7 and 8). He was sentenced to a total effective sentence of 3 years and 9 months’ imprisonment with a minimum non-parole term of 2 years.
The applicant was acquitted of three further charges of indecent act with a child under 16 (charges 2, 3 and 5) and one charge of sexual penetration of a child under 16 (charge 4). A verdict of not guilty was directed by the trial judge on one charge of indecent act with a child under 16 (charge 6).
The charges related to four separate incidents, said to have occurred over three separate days. We shall describe those days as:
(a)The first sleepover (charges 1 and 2).
(b)Lysterfield Lake (charges 3, 4) and its sequelae (charge 5).
(c)The second sleepover (charges 6, 7 and 8) .
The applicant’s Grounds of Appeal are:
•Ground 1(a): the guilty verdict on charge 1 is inconsistent with the verdict of acquittal on charge 2.
•Ground 1(b): the guilty verdicts on charges 7 and 8 are inconsistent with the verdict of acquittal on charge 2.
•Ground 2: the guilty verdict on charges 1, 7 and 8 are unreasonable and cannot be supported having regard to the evidence.
The respondent concedes that Ground 1(a) is made out. We have concluded that this concession is well-made. We shall explain our reasons for this conclusion after providing a short factual summary together with a review of relevant legal principles.
Factual summary
The offending was said to have occurred in 2009 and 2010. The female complainant (SR) was between 10 and 12 years old and the applicant 38 to 40.
In these years the applicant lived with his wife (Sangita), his 8 to 10 year old son (Tejas) and his 2 to 4 year old daughter (Riya).
The first sleepover
In 2009 SR and her family visited the applicant’s two-bedroom family home in Dandenong North for dinner. After dinner SR asked her parents whether she could sleep there, to which they agreed. The applicant, Sangita, Tejas, Riya and SR went to a bedroom to watch the video ‘Splash’. SR was positioned on the floor next to the window. SR said the applicant was positioned next to her on the floor, followed by Tejas, Sangita and then Riya (in that order) all lying on the floor. The applicant’s recollection of the sleeping positions and that of his wife differed slightly from SR’s recollection. We shall discuss this further, later in these reasons. It is undisputed that the other bedroom was used as a store-room and the applicant’s entire family would normally sleep on the floor (either on blankets according to the applicant, or mattresses according to the complainant) in this single bedroom.
SR stated that after the movie finished they ‘went to sleep’. She said that about 15 minutes after this, as she was lying on her side facing towards the window, she felt the applicant pulling on her shoulder so that she then lay on her back. She said that the applicant was sitting up, although she alternatively described him as ‘on his side leaning on his elbow…upright and next to [her]…’ She said that with his right hand he touched the upper part of her body, her stomach and her hands and then ‘…he also went underneath my underwear to feel my vagina…and felt all around in there (charge 1 – guilty)…and I also remember he came up to my face …and he kissed my lips…(uncharged act)…and later on…I was lying on my back looking at the wall…he grabbed my hand…my right hand…and he put it underneath…his underwear and made me feel his penis which…I remember was like, the soft skin’ (charge 2 – acquitted). SR said it ended by the applicant removing her hand from his underwear and taking his hand away from her vagina.
In his police interview and in oral evidence the applicant denied these allegations and all other allegations of sexual impropriety.
Lysterfield Lake
SR stated in evidence that on 17 December 2009 the applicant and his family offered to take her to the movie ‘Avatar’. It was arranged that the applicant would take his children and her to the film. SR said that it was summer school holidays and a very hot day in the range of 40 degrees Celsius.
SR stated that she was collected by the applicant that afternoon. The applicant took her to a very isolated area of Lysterfield Lake. She dipped her feet into the water, perhaps up to just below knee level. This went on for 5-10 minutes. She returned to the ‘beach’ area. The applicant used a towel or similar to dry her feet and knees. He then removed her underwear and started touching the upper leg area close to her vagina. SR said he dried her vagina, even though it was not wet, and touched it with his hands (charge 3 – acquitted). He used his thumbs to spread the lips of her vagina and with his lips ‘he went on to, like, touch the centre of my split open vagina’ (charge 4 – acquitted). He pulled away, put her underwear and pants back on and they drove to his house. During this trip SR said that the applicant told her not to tell his wife or children about being at Lysterfield Lake as his wife was suspicious.
Later that day, after SR had played with the applicant’s children, the children and the applicant went to Fountain Gate to see the movie, Avatar, however it was very crowded and they abandoned this attempt. The group returned to the applicant’s house, collected Sangita and then went to SR’s house. They had dinner there with SR’s parents. After dinner the children played in the living room. SR gave evidence that the applicant entered the living room, grabbed and held SR and sat her on his lap. He felt her arms and knees. He moved his face towards her and leaned in to kiss her on the lips (charge 5 – acquitted) ‘while his kids were still roaming around’. ‘And then I think after a while, my dad came in through the door. Um, I think by this point…he didn’t do anything obviously…’
SR’s father gave evidence that he never saw SR sitting on the applicant’s lap. The applicant denies this offending and stated that SR never sat on his lap. The applicant by consent tendered two documents at trial. A Bureau of Meteorology record showed that on 17 December 2009 the maximum temperature reached was 22.1 degrees. A record of historical school dates for Victorian State Schools was also tendered. Summer school holidays commenced on 19 December 2009.
The second sleepover
In evidence SR stated that she attended a second sleepover at the applicant’s house. She was interested in watching a movie with the applicant’s family called ‘Harishchandrachi Factory’. She attended with her parents, and after her parents left she watched the movie with the applicant’s family with the same sleeping arrangements as the first sleepover. SR stated that she was again positioned next to the window with the applicant on the other side. The applicant pulled her shoulder so that she was lying on her back. He put his hand in her underpants and felt her vagina. He kissed her lips (uncharged act) ‘and moved his fingers …all through my vagina, and he would feel the lips and bit of the inside’ (charge 6 – directed acquittal). According to SR he then took his hand out of her underpants, took her hand and put it on his penis ‘stroking his penis with the help of my hand’. SR described the hand guiding technique as similar to a teacher teaching a child to write with a pen (charge 7 – guilty). He then went back to touching her vagina ‘playing around with it and touching the lips and doing anything that he can’ (charge 8 – guilty). After a while the applicant took SR’s hand away from his underpants. She quickly placed her hand under the blanket and felt disgusted. She got up and planned to clean her hand. She said the applicant turned on the light for her. She said she wanted to go to the toilet. She washed her hands and returned to bed.
As we have said the applicant denied any sexual misconduct. In his police interview, which he adopted in evidence, he said that SR had insisted that she sleep over on that occasion, his wife was a light sleeper and would have realised if anything had happened. He stated that the sleeping arrangements were the same as the first sleepover. SR was closest to the window, then the applicant, Sangita, his daughter and his son.
The Trial Judge directed a verdict of acquittal on charge 6.
Other evidence was called at trial.
Complaint evidence
SR stated in evidence that the first person that she told about the applicant’s activity was her friend TS. She said she was ‘sexually abused’ and identified the applicant. SR said in evidence that she had told TS that the applicant touched her in places that she should not be touched and that he tried to kiss her on the lips. TS gave evidence that in 2017 SR said she had been sexually assaulted by the applicant. SR told her that she would sleep over at the applicant’s house, and that one day he sexually assaulted her at a lake, and he told her not to tell his wife. TS said she was given no detail beyond the words ‘sexual assault’ at a lake. SR also told her she would not report the matter to the police.
SR stated that she told her parents in August 2017. During an argument she said she blurted out that she was sexually abused as a child by the applicant. She did not provide details. SR’s father stated in evidence that SR slept over at the applicant’s house on only one or two occasions, at her request and she did not provide any details beyond saying she was ‘sexually assaulted’ by the applicant. As we have observed he denied ever seeing SR sitting on the complainant’s lap.
Other evidence
Sangita Mane gave evidence called by the defence. SR had slept over twice at their house. Sangita stated that she and her husband (the applicant) had organised dinner for SR’s family, and when they were about to leave SR requested to stay the night. She agreed with the sleeping arrangements described by the applicant — SR by the window, then the applicant, herself, and the two children all lying on the floor with blankets. She stated she had always been a light sleeper. She would wake if she heard mice chattering, or if her husband rolled over right beside her. For the second sleepover, again SR and her family had been invited to dinner and again SR asked to stay. While Riya, Tejas and the applicant went to sleep, SR was still watching the movie. Sangita told her to go to sleep. The sleeping arrangements were the same. She said there was no third sleepover and she did not suspect that any inappropriate activity had occurred between her husband and SR.
This summary of evidence is necessarily incomplete. We may refer to other evidence in examining the grounds of appeal.
Inconsistent verdicts
In this case the applicant contends that the verdict on charge 1 is factually inconsistent with the verdicts on charges 2, 7 and 8. The test for factual inconsistency is one of logic and reasonableness. The applicant must demonstrate that the impugned verdicts cannot stand, in that no reasonable jury who had applied its collective mind properly to the facts in the case could have arrived at those verdicts.[1]
[1]Landale (a pseudonym) v The Queen [2022] VSCA 121, [39] (Kyrou, T Forrest and Walker JJA) (‘Landale’).
Intermediate courts of appeal are ‘reluctant to overturn a jury’s verdict on the basis that it is inconsistent with another verdict rendered in the same trial’[2] if those verdicts can be properly reconciled. In Mackenzie v The Queen[3] Gaudron, Gummow and Kirby JJ said:
‘[T]he respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context of both criminal and civil trials reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a “merciful” view of the facts upon one count: a function which has always been open to, and often exercised by, juries.’[4]
[2]Ibid, [40] (Kyrou, T Forrest and Walker JJA).
[3]Mackenzie v The Queen (1996) 190 CLR 348 (‘Mackenzie’).
[4]Mackenzie (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35, quoting R v Kirkman (1987) 44 SASR 591, 593 (King CJ).
In Landale this Court said:
[41] The courts have recognised that juries ‘cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them’. Sometimes juries ‘apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law’, so that, ‘although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number’. Appellate courts therefore should not be too ready to conclude that, ‘because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty’.
[42] Although there will be cases where the different verdicts are ‘an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’, it is only where the inconsistency rises to the point that intervention is necessarily required to prevent injustice that the relevant conviction will be set aside. There are no ‘hard and fast rules’; rather, whether particular verdicts are inconsistent will depend upon the facts of the particular case.
[43] Related to that final proposition, there is no general rule that, in cases where several offences depend upon the evidence of a single complainant, an acquittal on one or more counts compels the conclusion that the jury must necessarily have regarded the complainant as an untruthful witness, or that the complainant’s credibility was undermined, in respect of the counts upon which it has returned guilty verdicts.
In MFA v The Queen, Gleeson CJ, Hayne and Callinan JJ observed that a verdict of not guilty does not necessarily involve a rejection of the complainant’s evidence. Their Honours stated:[5]
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.
[5]MFA v The Queen (2022) 213 CLR 606, 617 [34] (Gleeson CJ, Gummow and Callinan JJ).
In short, courts must exercise real caution when considering a ground of factual inconsistency, and will only intervene where it is necessary to prevent injustice.
Grounds of Appeal
Ground 1(a)
As we have indicated the respondent concedes that this part of Ground 1 is made out, and that there is no logical basis upon which the jury could have found the elements of charge 1 to have been proved beyond reasonable doubt, and yet at the same time, to have held a reasonable doubt as to charge 2.
We agree with this concession. The case against the applicant on charges 1 and 2 rested on the complainant’s evidence and depended on her reliability and credibility which were indistinguishable as between the two counts. If the jury accepted SR as sufficiently reliable and credible to convict on charge 1, it should necessarily have convicted on charge 2. Conversely, if the jury had sufficient doubt about SR’s reliability and credibility on charge 2 as to acquit, it should necessarily have experienced the same doubt on charge 1 and acquitted. SR’s account of the events of each charge was that the alleged indecent acts were consecutive and within the one transaction. Further there was no other evidence, internal or external, that favoured, or disfavoured, one charge over another, and the applicant’s denials of each offence at the first sleepover were indistinguishable.
There is nothing in the evidence that can properly explain or reconcile the verdicts on charges 1 and 2 and no reasonable jury applying its mind properly to the facts of the case could have arrived at the impugned conclusion. Leave to appeal on Ground 1(a) will be granted, the appeal will be allowed and the verdict on charge 2 will be set aside and a verdict of acquittal will be allowed in its place.
That is not where this ground of appeal ends. At the trial the prosecution relied upon tendency reasoning as between the charged acts. In essence the prosecution contended that if the jury were satisfied of the applicant’s guilt on one or more offences it could use the conduct that it had found proven when considering other charges on the indictment.
The Trial Judge in her comprehensive and very careful charge directed the jury in orthodox terms:
You must keep that evidence of uncharged acts in perspective. In relation to, for instance, the kissing, it is only part of that prosecution case of context. In relation to Mr Gwynn’s cross-examination, it is only about credibility. And as I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you may have heard or learned about the accused that is not charged. The evidence has been led for the limited purpose that I’ve summarised, and you must not use the evidence for any other purpose. I turn to the question of tendency as a pattern of behaviour. Part of the prosecution case is that Mr Mane has demonstrated a tendency, or in other words, a pattern of behaviour to have a particular state of mind, namely, to have a sexual interest in [the complainant], and a willingness to act upon that interest by engaging in sexual acts with her.
The prosecution argues that you can be satisfied that Mr Mane has that tendency from a charged act. You cannot find there to be a tendency unless and until you find one charge proven. But if you do find Mr Mane guilty [of] at least one charge, then and only then, that can form the basis of that tendency reasoning, that is a circumstance that he may have had that sexual interest in [the complainant], and a willingness to act upon that interest by engaging in sexual acts. In response, the defence says you would never find a charge proven in any event, for the reasons Mr Gwynn carefully advanced to you. Primarily based on his criticism of [the complainant] as being a most unreliable and not credible witness. If you find that Mr Mane had a tendency, or in other words, a pattern of behaviour to have a particular state of mind, namely, to have a sexual interest in [the complainant], and a willingness to act upon that interest by engaging in sexual acts with her, then you can use that to find that it is more likely that Mr Mane committed the other offences against her.
This direction permitted the jury to consider, amongst other permutations, that the conduct that constituted charge 1 bore on the likelihood of the conduct occurring that constituted the other charges. Given that charges 3, 4, 5 and 6 resulted in acquittals, they can be set aside from this consideration. There is, however, a real, and not fanciful prospect that the jury used the wrongful conviction on charge 1 to conclude that the facts constituting charges 7 and 8 were more likely.
Senior Counsel for the respondent, when confronted with this prospect, very fairly accepted that the convictions on charges 7 and 8 would have to be set aside. He contended that in the event that Grounds 1(b) and 2 were unsuccessful, the proper order would be to remit charges 7 and 8 to the County Court for retrial. If one of Grounds 1(b) or 2 were to succeed than it would be appropriate to enter verdicts of acquittal on those remaining grounds. The applicant agreed with that analysis.
That analysis is correct.
Ground 1(b)
This ground contends that the guilty verdicts on charges 7 and 8 (the second sleepover) are factually inconsistent with the verdict of acquittal on charge 2 (the first sleepover).
The applicant contends that the second sleepover verdicts cannot be reconciled with the first sleepover acquittal on charge 1. He argues that the circumstances of the alleged offending at both sleepovers was remarkably similar; the same sleeping configuration, in the same room, involving almost identical alleged offending. The applicant’s denials remained constant to charges 2, 7 and 8, being a simple uncomplicated denial. Further, there was no external evidence favouring proof of the second sleepover allegations over the first sleepover, nor was the complaint evidence referrable more particularly to one of the sleepovers.
We consider that, whilst there are strong similarities between the two sets of alleged offending, there is no palpable ‘affront to logic and commonsense’ on the verdicts impugned under this ground. Put another way, we are not satisfied that a reasonable jury who had applied its collective mind properly to the facts in this case could not have arrived at the impugned verdicts on charges 7 and 8.
First, the two sleepovers were temporally disconnected, by at least a year. This can be contrasted to the temporal connection between charges 1 and 2 where the events occurred consecutively, almost contemporaneously and within the one transaction.
Second, in our view, the description of the second sleepover events carried with it more detail than the applicant’s account of the first sleepover. We consider that the combination of this detail may have impressed the jury on the issue of SR’s credibility and reliability as it concerned charges 7 and 8. In particular we point to
•The fact that the television had been moved.
•The fact that SR recalled eating strawberry yoghurt as she watched the movie.
•The fact that the applicant took SR’s hand with the same hand he had used to touch her vagina.
•SR’s description of the applicant controlling her hand movements on his penis using the example of how children are taught to write, and then controlling her hand to stroke his penis.
•The fact that the applicant turned the light on to allow SR to go to the bathroom.
•The fact that SR washed her hands only, but flushed the toilet for cover, and then washed her hands a second time.
We agree with the respondent that the jury was entitled to take into account this additional level of detail in assessing whether it accepted the complainant’s evidence in relation to charges 7 and 8 when compared to charges 1 and 2. As we have explained the mere fact that a jury acquits an accused of a charge does not carry with it the necessary implication that the complainant has been disbelieved. We think that it was open to the jury to conclude that the evidence was more reliable concerning the second sleepover than the first; assuming this to be the case there is no factual inconsistency between the verdicts on charges 2, 7 and 8.
The applicant submitted that the circumstances in this case were ‘akin’ to those in Jones v The Queen[6] and R v JGVR.[7] It is trite but correct to observe that each case will turn on its own facts and we have derived little assistance from these cases. Jones v The Queen was decided on the basis that the verdict was unsafe and unsatisfactory, and in R v JGVR the applicant was convicted of 1 of 14 charges (spanning 10 separate incidents). In the latter case the court was unable to perceive any difference in the quality of the evidence as between the various charges.
[6](1997) 191 CLR 439.
[7][2001] VSCA 8.
Ground 1(b) must be rejected.
Ground 2
This ground alleges that the verdicts on charges 7 and 8 are unreasonable and cannot be supported having regard to the evidence, invoking s 276(1)(a) of the Criminal Procedure Act 2009 (commonly referred to as the ‘unsafe and unsatisfactory verdict’ ground). The High Court has explained the proper approach to such a ground in a series of cases.
•Where, notwithstanding as a matter of law there is sufficient evidence to sustain a verdict of guilty, a court of criminal appeal is asked to conclude that a verdict is unsafe or unsatisfactory, the court must ask itself whether it thinks that it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt. In answering that question the court must not disregard that the jury is entrusted with the primary responsibility of determining guilt or not, and that the jury will have enjoyed the advantage of seeing and hearing the witnesses.[8]
•In most cases a doubt experienced by an appellate court in its independent evaluation of the evidence will be a doubt which a jury ought to have experienced. It is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by this court that a court may conclude that no miscarriage occurred. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, that the court is bound to act and set aside the impugned verdict.[9]
[8]M v The Queen (1994) 181 CLR 487, [493], [494]–[5] (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.
[9]Ibid, [494].
This approach was endorsed in Pell[10] and more recently in Dansie.[11] In Pell the High Court said
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[10]Pell v The Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (citations omitted).
[11]Dansie v The Queen (2022) 403 ALR 221.
In considering this ground we proceed therefore on the assumption that, at trial, the jury assessed SR’s evidence on the second sleepover incident to be credible and reliable. We shall examine the record to determine (notwithstanding this assumption) whether inconsistencies, discrepancies, other inadequacies or other evidence ought to have led the jury to have a reasonable doubt as to the applicant’s guilt on charges 7 and 8.
In summary the applicant relies on the following asserted inconsistencies or implausibility:
(a)Inconsistency in verdicts
•The applicant contends that the inconsistency in verdicts between charges 1 and 2 can contribute to a conclusion that the conviction is unsafe.
(b)Inconsistencies in SR’s account
•SR stated in evidence that there were three sleepovers in total, and that she declined an invitation to a further fourth sleepover. This can be contrasted to the evidence of SR’s father, the applicant and Sangita Mane who all testified that there were only two sleepovers.
•SR initially could not recall who requested the second sleepover but subsequently testified that it was not possible that she asked for it. Her father, the applicant and Sangita Mane all testified that it was SR who requested the sleepovers.
•SR had a memory of the applicant watching while she took a shower, however she was not sure whether in fact this happened. She accepted it was not a reliable memory.
•SR’s recollection of sleeping arrangements differed from the consistent evidence of the applicant and his wife.
•SR claimed Sangita slept ‘far’ from her, yet when pressed stated that she lay about a metre away.
•In describing the first sleepover SR testified that the applicant commenced to touch her 15-20 minutes after the lights were turned off. She accepted that at the committal she said she could not remember how long this period was.
•SR initially denied telling police that the film Avatar came out on 17 December 2009 but accepted this when her statement was put to her.
•SR stated that the applicant made her sit on his lap later on the day of the Lysterfield Lake incident and that her father must have seen this. The applicant denied that this event occurred and SR’s father stated he had not seen this.
•In relation to charge 7, SR accepted that she had not told the police that the applicant stroked his penis with her hand.
•The applicant used equivocal language on occasion such as ‘I think’ or ‘I guess’, or what the applicant ‘would’ do rather than what he did.
•SR stated that she told TS that the applicant had touched her in places she should not be touched, and that he kissed her on the lips. TS testified that she was given no details beyond the description of a ‘sexual assault’ at the lake.
(c)Implausibility of SR’s account
•The applicant allegedly touched the complainant in the near vicinity of his wife and two children. This, it was submitted, was inherently unlikely.
•The unchallenged evidence was that Sangita Mane was a light sleeper. In the case of both sleepovers there was a substantial risk that Sangita would wake up.
•After the events the subject of charges 7 and 8 the complainant stated that she got up and went to the bathroom, having said that she wished to go to the toilet. She further testified that the applicant turned a light on to facilitate this. She then washed her hands, flushed the toilet and returned to the bedroom — she ‘ran’ back to her sleeping position. This evidence does not sit easily against Sangita Mane’s evidence that she was a light sleeper who woke to any sound.
•The complainant did not tell her parents about these events for many years.
•It is implausible that the complainant would request a second sleepover if the earlier sexual assaults had actually occurred.
(d)Complaint
•SR did not report the applicant’s alleged conduct to anyone for 7 or 8 years. There was no impediment to her doing so.
•Her complaints to TS and her parents were lacking in any details.
•SR initially told the police she did not wish to pursue an investigation. During her initial ‘disclosure’ interview she did not inform police of any offending beyond the Lysterfield Lake incident.
The applicant submitted that the misgivings the jury held in relation to the applicant’s credibility and reliability given the verdicts on charges 2, 3, 4 and 5 (remembering the verdict on charge 6 was by judicial direction) ought to have carried through to charges 7 and 8.
The respondent, in short summary, resisted these contentions. It was submitted that the sort of inconsistencies identified can be anticipated in any historic sex offence prosecution, and we were reminded that by the time SR came to give evidence these events were over a decade old. The respondent contended that the conceded inconsistency as between charges 1 and 2 was of little if any assistance to the applicant under this ground as the relation to those charges was of a discernibly different quality to charges that which supported charges 7 and 8.
The respondent conceded that the alleged offending at the second sleepover was bold, but submitted it was not so bold as to be implausible, or even inherently unlikely. The events the subject of charges 7 and 8 were not said to be noisy or highly active, such as occurred for instance, in Arbogast v the Queen.[12] The failure to immediately complain is commonplace in child sex offence cases, and the fact that the child complainant willingly returned to the applicant’s house to watch a movie and play with other children is unremarkable.
[12]Arbogast v The Queen [2022] VSCA 143 (‘Arbogast’).
The respondent further contended that the delay and lack of specificity in the complaint evidence is unremarkable. Most of the matters referred to by the applicant were relevant matters for the jury to consider, but none of them considered individually or all of them considered in combination are of such a force as to compel a reasonable doubt.
Discussion
After conducting an independent evaluation of the evidence we have concluded that the applicant has failed to establish this ground.
We have determined that the verdicts on charges 7 and 8 were not unreasonable or unsupportable having regard to the evidence. In our view it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on these charges, and after conducting our own independent examination of the record we concur with their verdict. We shall explain our reasons.
It must be borne steadily in mind that the jury has enjoyed the advantage of seeing and hearing the witness. Whilst normally this is an unqualified advantage, in this case, that advantage has to be tempered by our conclusions on Ground 1(a). We must accept that the jury found that the complainant’s evidence, on charges 7 and 8 was reliable and credible, however that finding by the jury is against the background of the tendency directions provided by the judge in her charge. For reasons that we have explained we consider it a realistic possibility that the jury may have acted upon its inconsistent conviction on charge 1 in support of the complainant’s reliability and credibility on charges 7 and 8. Assuming this to be the case, given the conceded inconsistency of the charges 1 and 2 verdicts, the assumption that the complainant’s evidence was reliable and credible on charges 7 and 8 is to some extent undermined. We shall never know whether the jury used tendency reasoning in its evaluation of the complainant’s reliability and credibility on those charges, or whether they determined charges 7 and 8 first and then, using tendency reasoning, reasoned backwards to consider charges 1 and 2 or indeed whether they used tendency reasoning at all.
In these unusual circumstances we have discounted the weight we would normally give to the assumption that the jury found that the complainant’s evidence, on charges 7 and 8 was reliable and credible. To this extent the inconsistent verdicts on charges 1 and 2 are relevant to our independent evaluation of the evidence.
We are of the view that the verdicts on charges 3, 4 and 5 (Lysterfield Lake and sequelae) do not impact on the applicant’s credit and reliability, and the applicant only faintly contended that they did, although he relied on certain inconsistencies in the evidence relating to those charges which he contended ought be considered when evaluating SR’s overall credibility and reliability. The verdicts on charges 3, 4 and 5 were explicable, in our view, from doubts experienced by the jury arising from the applicant’s apparent certainty that the Lysterfield Lake events occurred on 17 December 2009, a hot near 40 degrees Celsius day in the school holiday period. As we have observed cogent evidence demonstrated that the day was temperate rather than hot (22.1 degrees Celsius), and SR’s school had not yet broken up for the holidays. Similarly charge 5 was said to have occurred later that day, after the applicant had placed SR on his lap. SR stated that her father would have seen this; her father stated that he did not. We have also taken these inconsistences, that may well explain the verdicts on charges 3, 4 and 5, into account when conducting an evaluation of the evidence.
Many of the asserted inconsistencies in SR’s account must, in our view, be considered against the substantial delay in complaint and subsequent trial. In cases of substantial delay, such as in this case where the first complaint by SR was 7 or 8 years after the events, it is unreasonable to expect unerring precision or complete recollection. We consider that SR’s account of charges 7 and 8 was plausible and not particularly inconsistent. The lay usage of terms such as ‘I think’ and ‘I would have’ are commonplace when a witness is endeavouring to recall events of some antiquity and are certainly not fatal, by themselves, to a witness’ credit. Of course we must take into account any forensic disadvantage sustained by the applicant that is occasioned by the delay, although this was not pressed heavily in submissions.
Inconsistencies that rely on a recollection of fine detail after a delay of 10 years are, in our view, of little assistance in our evaluation of the evidence. Whether SR is mistaken about there being three (as opposed to two) sleepovers is of little moment. If the jury accepted that SR requested the second sleepover, on the basis of the evidence of the applicant and her father, then that is inconsistent with the applicant’s evidence that it was ‘not possible’ that she asked for it, but that is all; it will be recalled that SR initially said that she could not recall who asked for it and when pressed said it was ‘not possible’. Again we consider this discrepancy in the evidence to be of little assistance in our overall evaluation. Similarly SR’s vague memory of the applicant watching while she took a shower has little to do with this exercise. SR was prepared to concede (sensibly we consider) that she was not sure whether this in fact happened and accepted it was not a reliable memory. She made no similar concessions about events more directly related to charges 7 and 8.
We think there is nothing in her differing recollections of sleeping arrangements as compared to the evidence of the applicant and Sangita. Importantly the complainant was correct in describing her position by the window, and the applicant’s position — right next to her. After a decade the fact that SR may have transposed a couple of other positions, if in fact she did, is of no moment.
To the extent that SR’s account to the jury differed from her statements to the police, we do not consider that this undermines her credibility or reliability to any degree. It is clear that SR did not tell the police in any stage of the investigative process, that the applicant took her hand and used it to stroke his penis, but she did tell the police that the applicant used his hand to place her hand on his penis. After a decade the distinction is fine if not illusory.
As we have said we do not consider that there is any inherent internal implausibility in the complainant’s account of charges 7 and 8. True it was high risk behaviour with the applicant’s wife in the near vicinity, if not beside him, however experience tells us that high risk behaviour does not necessarily mean implausibly high risk behaviour.[13]
[13]Ibid, [46] (Emerton P and T Forrest JA).
Further, the events alleged in the second sleepover were, on the complainant’s account, neither noisy nor particularly active. There was no active participation at all from SR. Given the proximity of Sangita the offending was bold but not so bold as to be improbable.
The applicant contends that the complainant’s evidence that she wished to go to the bathroom to wash her hands after the impugned charge 7 and 8 conduct is implausible. We disagree. To the extent that it is contended that this evidence is inconsistent with the recollection of the applicant and Sangita, we doubt, particularly in relation to Sangita, that this inconsistency is of any moment. For about 7 years this second sleepover must have been unremarkable to, at least, Sangita. It defies human experience that 7 years later she would recall who went to the toilet this night and the state of the lighting when they did so.
The delay in complaint and lack of specificity in the complaint evidence is, we consider, unremarkable. It is commonplace in child sex offences that complaint is belated, and very often detail only emerges sporadically.
Our overall impression of the complainant’s evidence is that she stood firm under thorough and highly competent cross-examination by an experienced criminal barrister. To use the vernacular she was not ‘blown out of the water’ nor was there ‘blood on the floor’. There are neither discrepancies nor inadequacies in SR’s evidence of such a character that required the jury to have entertained a doubt as to guilt. Further there is nothing, in our view, in the other evidence in the case, including the applicant’s evidence, that would compel the jury to have a reasonable doubt. For the same reasons our independent evaluation of the evidence does not compel a conclusion of a reasonable doubt on charges 7 and 8.
We would not uphold ground 2.
Conclusion
For the reasons stated the appeal on Ground 1(a) will be allowed. The verdict on charge 1 will be set aside and a verdict of not guilty will be substituted. The verdicts on charges 7 and 8 will be set aside and a new trial ordered on those charges.
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