Mejia v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0029

ALBERT MEJIA (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, KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 November 2016
DATE OF JUDGMENT:	28 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 296
JUDGMENT APPEALED FROM:	[2015] VCC 1894

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CRIMINAL LAW – Appeal – Conviction – Rape, incest, indecent act with child under 16 – Complainant was younger sister of accused – Whether verdicts unreasonable – Whether jury bound to have doubt about complainant’s credibility – Complainant contacted witnesses before trial – Dispute between complainant and accused over mother’s will – Whether complainant financially motivated – Inconsistencies in complaint evidence – Whether complainant’s behaviour inconsistent with allegations – Appeal allowed – Convictions quashed – Verdicts of acquittal entered – Criminal Procedure Act 2009 s 276(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC with Mr B W Johnston	Reichman & Co
For the Respondent	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P:

Summary

I have had the advantage of reading in draft the reasons for judgment of Kyrou and Kaye JJA. Their Honours’ comprehensive account of the evidence, and of the course of the trial, makes it unnecessary for me to repeat any of those matters. I have, however, come to a different conclusion on the disposition of the appeal. For reasons which follow, I would grant leave to appeal but dismiss the appeal.

Having read the trial transcript in its entirety, I am not persuaded that this is a case where the jury must have had a doubt about the guilt of the accused.[2] Clearly enough, there were matters which might have raised a doubt in the mind of a reasonable juror. But, in my view, none of the matters relied on by the applicant — taken either singly or collectively — precluded the jury from being satisfied of his guilt beyond reasonable doubt.
[2]Klamo v The Queen (2008) 18 VR 644, 654 [39].

As will appear, all of the matters relied on by the applicant concern the complainant’s credit. The jury were perfectly capable, in my view, of resolving those credit issues for themselves. The defence attack on her credit was spelt out at length, and repeatedly, throughout the cross-examination and in the final address. Its themes were clearly delineated: she is a liar; she is motivated by money; she makes false allegations; she tries to get others to give false evidence’; and so on.

These were quintessential jury questions. The various strands of the attack were readily comprehensible. The questions raised went to matters of ordinary human experience. And the jury were clearly told by the prosecutor and by the judge that they could only convict the applicant if they were satisfied beyond reasonable doubt that the complainant was telling the truth.

Critically, the jury had the advantage of seeing the complainant give evidence. They saw her cross-examined at considerable length on all of the credit issues, especially that relating to her sexual encounter with her school boyfriend (N) and her pre-trial contact with him. And they saw how she responded to the cross-examination. They heard her speak about how much the offending had affected her and, on at least one occasion, saw her visibly distressed in the witness box. Any doubt which I might otherwise have entertained is comfortably resolved by the fact that the jury saw the complainant give evidence.[3]
[3]M v The Queen (1994) 181 CLR 487, 493–4.

The jury deliberated for almost two days. After a day’s deliberation, they asked the judge a very precise question, about the applicant’s record of interview, which revealed just how carefully they were reviewing the evidence, charge by charge. After that long and careful deliberation, the jury came unanimously to the conclusion that she was, beyond reasonable doubt, a witness of truth.

In those circumstances, in my view, this Court should be very slow to conclude that the jury’s verdict was not reasonably open. As the High Court emphasised recently in R v Baden-Clay, the task of adjudicating guilt is the preserve of the jury:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.
…
With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[4]

[4](2016) 90 ALJR 1013, 1023-4 [65]–[66] (citations omitted), quoting Hocking v Bell (1945) 71 CLR 430, 440; M v The Queen (1994) 181 CLR 487, 494–5. See also MFA v The Queen (2002) 213 CLR 606, 621 [49]–[51], 623 [56].

As the joint judgment acknowledges, the complainant’s evidence about the sexual abuse was consistent throughout.[5] There was no suggestion that her evidence differed in any material respect from what she had originally told police or from what she had said at the committal. Importantly, the complainant readily accepted that there were differences between what the complaint witnesses recalled her saying and what she recalled telling them. One of those witnesses, J,[6] had a clear recollection of being told by the complainant that the brother had forced her on to a table and ripped her bra. The complainant was equally clear that she had never made that allegation, and she did not at any stage change her position.
[5]See [143] below.
[6]We refer to the complaint witnesses as J, K and L respectively.

The jury were entitled, in my opinion, to view the evidence of complaint as providing significant confirmation of the complainant’s credibility. Both K and J recalled the complainant talking (on separate occasions) about her brother having raped her. On each occasion, she had been visibly upset. Moreover, K’s evidence emphatically confirmed the complainant’s recollection that L had been present when that complaint was made. In the circumstances, L’s lack of recollection of the complaint could be viewed as being of little consequence.

Further, as the prosecutor pointed out in final address, there was evidence that the complainant had complained in 2008, first to a psychologist and then (on two occasions) to a doctor. Their notes confirmed that she had complained that her brother had sexually abused her. Those complaints were both made before their mother’s death and before the will dispute had emerged.

The jury were entitled to treat as significant the high degree of consistency between the complainant’s police statement and her evidence in chief, especially in view of the clarity with which she recalled particular details. I refer, for example, to her evidence that the applicant said he was ‘teaching’ her about kissing and about sex; her specific recall of the words he used when demanding particular sexual acts; and her detailed recall of the unit in which the applicant was living at the time of the last incident. Given the defence contention that the allegations were all fabricated, it was significant for the jury’s assessment of the complainant’s credit that her account of the offences showed no sign of unravelling under cross-examination. It was, of course, for the jury to decide whether she was speaking from recollection or — as the defence maintained — was rehearsing a story she had made up.

Nothing in the complainant’s answers in cross-examination reads as evasive or patently unconvincing. As I have said, she seems to have accepted without prevarication the conflicts with other witnesses which were pointed out to her. For example, she agreed with defence counsel that it seemed ‘ridiculous’ that N’s account of a condom breaking during their encounter was so similar to her own account of a condom breaking when her brother raped her. Again, the jury could judge for themselves the authenticity of her response that she ‘could not understand’ why N’s recollection was so different from hers.

As to the complainant’s contacts with witnesses, I consider that it was well open to the jury to view this as conduct consistent with the position of a victim of child sexual abuse. As the prosecutor submitted in final address, the jury were well equipped:

to look at the evidence and critically analyse it and consider whether or not what [the complainant is] doing is behaving in [the] manner of someone who is a victim of the offence described or is she someone that is trying to influence and change evidence.

It was hardly surprising that the complainant, having been told by police that the case against her brother would not proceed, might do naïve or stupid things in the hope of removing what were said to be the obstacles. After all, the obstacles were hardly central to the case. The first was the reluctance of K to come forward. In the event, the complainant’s approach to K had the desired effect. She came forward and gave her evidence appropriately. There was no suggestion in cross-examination that she had been primed to say anything in particular, or that she had no independent recollection of the complaint.

Both at trial and on appeal, the principal ground of attack on the complainant’s credit concerned her sexual encounter with N and her pre-trial contact with him. It is difficult to understand why the prosecutor chose to lead the evidence which caused this to become an issue. It was evidence of an uncharged act, an alleged rape, and was led only as background or context evidence. It added nothing to the complainant’s account of the charged acts. And, given the dispute of fact between her and N about the circumstances of their (contemporaneous) sexual encounter, the leading of the evidence was inevitably going to create a major distraction from the Crown case.

As it transpired, this irrelevant sexual encounter with N became a central issue in the trial. The prosecutor in final address told the jury that they had to decide whether they preferred the complainant’s version, or N’s version, about what had taken place between them. That was not, of course, a fact in issue in the trial. It had nothing to do with proof of the allegations against the applicant. If the evidence of the uncharged act had not been led, the issue of the complainant’s encounter with N would almost certainly not have arisen. Even if the defence had managed somehow to raise the credit issue, they could not have led evidence from N to contradict the complainant.[7]
[7]See, eg, Papazoglou v The Queen (2010) 28 VR 644, 654 [41]–[44].

The conflict between the complainant and N having become a major credit issue, however, it was for the jury to assess, in the light of the whole of the evidence, who was to be believed, and why. The defence emphasised that the encounter was an occasion which N was likely to recall. The same could equally have been said of the complainant. And she had a much more detailed recall of what happened than N did.

In the end, the crucial question was whether the jury viewed as credible the complainant’s evidence about the sexual encounter; about her surprise at N’s different recollection; and about her reasons for trying to ‘make him remember’. There is nothing about that set of issues which was beyond the jury’s competence to decide for themselves.

As set out more fully below, I consider that the jury were entitled to regard the complainant’s evidence about the will dispute as perfectly plausible. Of course, there was a question as to why she had not mentioned the allegations to her brother before he lodged his challenge and why they only came out in the affidavit she filed for the mediation. But that is where the prior complaints were of such importance. Complaints made while the complainant was a schoolgirl could not possibly have been explained by financial advantage. Defence counsel acknowledged as much in pre-trial argument.

Again as more fully set out below, I consider that it was well open to the jury to reject the defence contention that the complainant’s later voluntary contact with the applicant was ‘inconsistent’ with her allegations of sexual abuse. As the authorities and the literature make clear, the relationship between an abuse victim and the abuser is very complex, and a victim may well behave in ways which seem inexplicable.[8] This was a matter which was well within the capacity of the jury to determine and they were certainly not bound to conclude that the complainant’s later conduct affected her credibility. Moreover, given the jurors’ varied experiences of life and their firsthand observation of the complainant’s testimony, I consider that they were much better placed than is this Court to make that assessment.
[8]See, eg, MA v The Queen (2013) 226 A Crim R 575, 579–80 [17]–[23].

The joint judgment also treats as a material consideration the complainant’s failure to complain to her parents.[9] With great respect, I do not regard that as having any bearing on the jury’s assessment of her credit. The position of a child sex abuse victim, following abuse by a family member, is notoriously complex.[10] Quite properly, in accordance with s 52(4) of the Jury Directions Act 2015, the judge directed the jury as follows:

Experience shows that people react differently to sexual offences and there is no typical, proper or normal response to a sexual offence. Some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint at all. It is a common occurrence for there to be delay in making complaint about sexual offending.

[9]See [145] below.

[10]See, eg, R v ERJ (2010) 200 A Crim R 270, 279–80 [49]–[51]; AC v The Queen (2014) 42 VR 278, 288 [78], quoting R v MM [2007] EWCA Crim 1558.

I turn now to deal in more detail with some of the individual credit issues.

Contact with witnesses

The defence made much of the complainant’s contact with witnesses in August 2013. It is, of course, most unusual for such contact to occur. But there is nothing in that sequence of events which, in my view, obliged the jury to have a doubt about whether the complainant was telling the truth. When the chronology of events is understood, and the complainant’s explanations are fairly examined, the picture which emerges is of someone who was ‘passionate’ about bringing her abuser to justice and who was — understandably, if naïvely — anxious to remove what the investigators told her were obstacles to that occurring.

It is important to point out that, when the informant was asked whether he thought the complainant was ‘actively trying to persuade [N] to change his evidence’, he disagreed. As he put it:

she’s passionate about the case and she wanted to know why he said … what he said. I don’t think she was trying to convince him to change his evidence.

The complainant gave her statement to police in May 2012. Before she went to police, she had sent a Facebook message to K, asking whether she remembered the complaint after the class. K said that she did remember it. The complainant did not ask her for more detail. According to the complainant, it was the mediation in the estate case which had ‘triggered’ her to contact K. The complainant clearly remembered her purpose in contacting K: ‘I always wondered for many years did she remember’.

The complainant sent K a further Facebook message, reminding her that L was also there and that the applicant had sexually abused her from the age of 11. The complainant said that she was not trying ‘to put words into [K’s] mouth’ but was ‘just trying to see if she remembered or not, because I always wondered if she did, because it was such an upsetting time for me’. In my view, the jury were entitled to view that account as plausible and the contact with K as innocuous. It is hardly surprising that, in trying to sort out her own recollections, the complainant would have checked with a person to whom she recalled having made a complaint.

The crucial time was August 2013. That was more than a year after the complainant had made her statement. The informant spoke to the complainant on about 16 August 2013, and advised her that no charges would be laid against the applicant. He told her that there were ‘some difficulties in respect of her general credibility’, one of which related to N. He told her that there was a conflict between what she had said in her statement and the statement which had been obtained from N. In cross-examination, the complainant recalled the informant telling her that N had made a statement in which he said that they had had sex together and that, in the course of having sex, the condom broke.

The complainant said, ‘It was very shocking to me that he had a different recollection of what happened.’ She had earlier said that she had definitely not had sex with N. Importantly, she had said that to police ‘so that they could check with [N]’. She had ‘nothing to hide’. As she said under cross-examination, she assumed that his recollection would be the same and she was very surprised when that proved not to be the case.

The other obstacle identified by the informant, so the complainant told the jury, was that K was too scared to testify. According to the complainant, the informant told her that she was ‘welcome’ to contact K, to say how much the case had affected her and to reassure K that there was nothing to be scared of.

Subsequently, the complainant contacted both N and K. Significantly, in my view, the complainant openly acknowledged that the informant had not approved of her making any contact with N. She made clear in cross-examination that she had done that on her own initiative. She thought that, if it was alright with the informant for her to contact K, then it would probably be alright to contact N.

As the joint judgment notes, the informant denied having said anything to the complainant about speaking to K. This was, however, a direct conflict of evidence and it was open to the jury, in my view, to accept the complainant’s account. As the informant himself acknowledged (soon after his denial that he had encouraged her), she was ‘passionate’ about bringing the case to court. She was evidently just the kind of person who, when told of K’s reluctance, would have proposed talking again to K to reassure her. And, in the face of her passion, the informant may well have acquiesced. After all, there was no suggestion in relation to K of a conflict of recollection. And a personal approach to K by the complainant would have seemed more likely to be effective than another request from the informant.

When the complainant contacted K, she told her how much the offending had affected her and how much she would appreciate it if K would be ‘brave and come forward because we don’t want someone like him to go free’. That account of the conversation seems entirely plausible. It is consistent both with what the complainant had been told about K’s attitude, and with the informant’s characterisation of the complainant as ‘passionate’.

The sexual encounter with N

The jury were entitled, in my view, to regard the complainant’s account of her sexual encounter with N as entirely plausible. According to her account, N told her that he wanted to have sex with her. He took her to a paddock. They had their pants off but N could not get an erection and was unable to put on the condom. He masturbated in order to try and get an erection but did not succeed. There was no penetration and, accordingly, no question of the condom breaking.

The complainant was cross-examined about why she would have allowed herself to be in this position if, as she had said in her police statement, she was shy with boys and found it very hard to talk to them. She said she had agreed to have sex with N, ‘because I felt that I had to go along with whatever they say, because that’s all I have known from the age 10, 11, to do what a male tells me to do.’ And again, ‘I felt like I had to. I’d been conditioned for so many years. I was shy, I had to say yes. What other options were there?’

In my view, it was well open to the jury to regard this as a plausible explanation. On her account, the complainant had always been powerless to resist her brother’s sexual domination. She had had no other sexual experience, and had never had a boyfriend. The jury could properly regard her shyness and inexperience as making her particularly vulnerable to this kind of suggestion from a boy.

Equally, there is a ring of truth about her denial of the defence proposition that she had initiated sex with N. It was put to her that it was her birthday and the present she had wanted was to have sex with N. Her response was very strong: ‘That’s outrageous. I would never have said that in a conversation. There is definitely no way I would have said that. That sound[s] disgusting.’

As noted earlier, the complainant was shocked to learn that N had a different recollection of the incident. When she contacted him — on 16 August 2013, the day she had heard the case was not going ahead — she said that she remembered ‘things being very close to having sex but you having to go behind a bush and things didn’t go any further’. That statement is consistent with the evidence which she gave at the trial. He responded that his memory was that they had had sex but that he had not ejaculated. To that the complainant responded by asking whether it was alright to talk to him, ‘as this is the only thing stopping him from going to gaol at the moment as police say it undermines my credibility’.

At the committal, the complainant had explained that her intention in contacting N was ‘for him to remember that we didn’t have sex’. Pressed both at the committal and at the trial about whether she was in fact ‘trying to change what he says happened’, the complainant acknowledged — candidly — that ‘in a way’ she was doing that. In two different answers, she explained that this was because she considered N’s recollection to be incorrect. She told the jury:

I have such a clear recollection, I can remember what he was wearing, what I was wearing, it’s so clear to me. I just wanted to say, ‘Is there any chance 20 years ago perhaps you maybe could be mistaken, that we didn’t have sex?’ That’s all I was trying to talk to him about.

As the complainant emphasised in her answers, she had no reason to be evasive about whether or not she had had sex with N. She simply answered the police officer’s question. She assumed N would say the same, ‘because we didn’t. It was quite clear.’ And further, ‘I just wanted him to recall what happened that’s all. I just didn’t understand how we had such two different recollections of what happened …’.

She sent a further message asking, ‘Is it possible that it wasn’t hard enough and so only touched and didn’t go in fully and penetrate?’ She acknowledged that that was not what she recalled having happened. It was put to her that she was trying to get him to agree with a ‘false version’. She replied, ‘I wasn’t trying to do that, I was just trying to get his memory working, that’s all’. Defence counsel accused the complainant of attempting to pervert the course of justice. He put to her that she was prepared for N ‘to give false evidence in a court case where your brother might end up going to gaol.’ The complainant denied that proposition and said:

I just wanted him to remember what happened. If he doesn’t remember what happened I can’t get him to change his mind. … I remember so clearly what happened. I can remember what I wore, what he wore. I can remember and I just wanted him to remember.

Once again, this was quintessentially a matter for the jury. They were well able to evaluate these responses, taking into account how the complainant looked, and sounded, when she gave these emphatic answers. The nature of the attack on her credit could not have been clearer.

On 20 August, N responded saying, ‘I remember the condom broke and you thought you may be pregnant and thought it was mine.’ The complainant queried why he was concerned about pregnancy ‘if you didn’t come?’ She said that she was pretty sure that there had been no penetration. When challenged that she was ‘trying to change his evidence’, she said again that she was ‘just trying to … help him remember if possible, because it’s so important to me that it didn’t happen and what actually did happen’.

She was then challenged about ‘this massive, massive coincidence’. How was it, defence counsel asked, that her brother could tell what (on her version) was a false story about her having had sex with her boyfriend, and the condom breaking, when according to N that was in fact exactly what had happened at about that time? The complainant responded — candidly — by saying that it sounded ‘difficult’ to her, too. But she reiterated that, if she had had any concerns about her story, she ‘would never have said it to the police to go to [N]’. The jury were entitled to view that as a credible response, in my view.

At this point, defence counsel for the first time put a suggestion to the complainant as to why she would have told a lie to police about her encounter with N. He put to her that she knew she had had sex with N but ‘tried to create a false version in her statement because she wanted to put herself in a better light’. The complainant rejected the proposition. And, in my view, the jury were entitled to view it as wholly unpersuasive. The complainant accepted that her second statement to police was much more detailed about the encounter with N but explained that this was because it had not been necessary in the first statement to ‘say any of that’. It seems that she was simply asked whether she had had sex with N and answered that she had not. It was a peripheral issue at that stage. In my view, the jury were entitled to accept her responses as truthful.

On 18 August 2013, the complainant’s husband sent a very long email to police ‘imploring’ them to continue the investigation. On the following morning, 19 August 2013, the police responded, via email, saying:

Thank you for your emails, particularly in relation to identification of the … unit. This office will investigate that aspect of the matter and will further consider the brief as a whole at the conclusion of those new inquiries. I can say we are sympathetic to your allegations but make decisions on the viability of prosecutions.

The complainant accepted that this email appeared to indicate that the investigation was continuing. It was then put to her that she had lied when she told the jury that she had ‘only ever contacted [N] in circumstances where [the complainant] thought the case was dropped’. But, as was soon confirmed, her first contact with N was on 16 August 2013. As she again pointed out, that was the day she was told by the informant that the case was not going ahead.

Acknowledging that she learnt on 19 August 2013 that the investigation was continuing, she said:

I perhaps shouldn’t have kept talking to him but he responded and of course I wanted to know if he remembered something that was so different to me… It didn’t cross my mind at the moment — at the time, because he was willing to talk to me and I just wanted to know his recollection and that conversation had started much earlier when I was told the case was dropped.

In my view, it was open to the jury to regard this as an entirely plausible response. She had initiated the contact with N after the case was dropped and, naturally, persisted thereafter in order to try and understand the conflict of recollection.

Attention was then drawn to the statement in the husband’s email that she had not had contact with K ‘of any substance for some 13 years now’. This was not correct. She had already said in her evidence about her contact with K. But it was not a matter of any great significance, in my view.

The ‘indecent assault’ allegation

At the end of the cross-examination, defence counsel asked the complainant to confirm that she had never alleged that her brother had indecently assaulted any of her friends. This matter had been explored in the absence of the jury, by reference to the husband’s 18 August 2013 email in which that allegation was made for the first time. But in the brief exchange in front of the jury, there was no mention of the email. As a result, the complainant was given no opportunity to explain how it was that the allegation had come to be included in the email.

It may be assumed that, if she had had that opportunity, she would have answered in much the same way as she had on the voir dire, by referring to the applicant’s having said ‘some very sexualised things to [her friends] many times’. But that particular topic had been disavowed by the prosecutor in pre-trial argument. And the judge specifically told the complainant, before the jury were recalled, that she must not mention anything about what he had said about her friends.

In final address, defence counsel submitted that the complainant’s credit was damaged by the fact that the email included an allegation which she had never made. But, as I have said, she had not been given any opportunity to answer that charge.

The dispute over the will

The complainant did not at any stage seek to conceal the connection between the applicant’s challenge to their mother’s will and her own making of the sex abuse allegations. In her initial statement to police, she had described the proposal which her solicitors had put to the applicant’s solicitors, after he commenced proceedings challenging the distribution under the will. The proposal, so she told police, was that, if he withdrew the suit against the estate, ‘I would not seek compensation against him.’ It was not suggested to the complainant in cross-examination that the proposal involved her agreeing not to go to the police. The proposal was confined to a civil claim for compensation. Yet defence counsel in final address submitted that she had offered not to go to the police.

When the complainant made her statement to police, she said that nothing had been heard from her brother for a year and a half after the proposal was put. In fact, as was pointed out to her in cross-examination, his solicitors had responded immediately, rejecting the proposal and stating that they had instructions to accept service of any compensation claim. She said that she did not remember seeing that letter.

This was a point of little significance, in my view. Things clearly went quiet for some considerable time. The complainant took no steps to commence compensation proceedings and, it seems, it was not until November 2011 that her brother’s lawyers sought a directions hearing in relation to the probate case. At that point, directions were made for the filing of affidavits, with a view to the parties going to mediation.

The complainant made an affidavit on 7 March 2012, in which she raised her allegations of sexual abuse. This was filed, she said, in accordance with the Court’s timeline. Subsequently, the Court ‘didn’t want to go any further with the mediation because of the allegations’. It seems as if the mediation was scheduled to take place in May 2012, but was abandoned for that reason. The complainant made her first police statement soon after.

The complainant was pressed on whether she had been concerned that, if her brother succeeded in his challenge to the will, she and her husband would be in a ‘very difficult position financially’. She said, emphatically, that she had never had that concern. She explained why. The property purchase, involving the $200,000 from the will, had left her and her husband with a mortgage of $100,000. That was a reduction, it seems, from a previous mortgage of $200,000. The complainant said that the $100,000 ‘which we put into our mortgage’ was able to be redrawn at any time.

She and her husband were advised that, if her brother won the estate claim, their maximum liability would be to pay him half. That would mean paying him $100,000. They would have to redraw the additional $100,000 on the mortgage, requiring repayments of ‘$200 to $300 a week’. She said, ‘We are not concerned at all about that’. There was nothing implausible about these responses. It was, again, well within the capacity of the jury to make their own assessment of whether the circumstances of the estate claim caused them to doubt the complainant’s truthfulness.

On the final occasion when the complainant was recalled, defence counsel asked her about a letter from her solicitors to the Supreme Court. In that letter, the solicitor stated that the complainant ‘has initiated criminal investigation’ in respect of her brother’s conduct. The letter then stated: ‘It is part of the case of the defendant that the outcome of these matters is material to the court’s deliberation in respect of the plaintiff’s claim.’

When the complainant had been asked about this earlier, it had been suggested that her contacts with K and N were prompted by a concern that the outcome of the criminal matter had ‘a direct relationship with the outcome of the probate matter’. She replied, ‘It a hundred per cent does not’. The imputation in that question was that her motivation in trying to remove the obstacles to the criminal investigation was really her concern with the probate matter.

In my view, her earlier answer amounted to no more than a denial that her concern was financial. Indeed, it would have been strange for her to have denied that the two proceedings were connected. After all, she had already confirmed in her evidence that it was the affidavit in the probate proceeding in which, for the first time, she had made the allegations of sexual abuse. She had obviously done that after being advised that those allegations were relevant.

Inconsistent behaviour

Defence counsel challenged the complainant about having gone voluntarily to her brother’s house after the car repair episode, and into his caravan on another occasion. She confirmed, in relation to each of those locations, that it was ‘the last place on earth’ she would have wanted to go. Nevertheless, having readily made that concession, she confirmed that she had gone of her own accord. She was not forced or threatened.

When it was suggested to her that this conduct was ‘just totally inconsistent with the allegations’, she said:

it’s not inconsistent because if someone’s abused for so many years, … these people have a hold on you … you fear them. You think that you have to do everything that he says or he is going to hurt you. He threatens me, he threatened me.

And further, ‘It’s a psychological hold’.

She did not think anything was going to happen when she went back to his house: ‘I always wanted to hope that there was good in him. I always wanted to hope that that’s not all he wanted to do to me all the time.’ Asked about threats, she said, ‘He had threatened me in the past, not on that day and yes he had power over me’. The complainant was asked whether she tried to get out of her brother’s house as quickly as possible. She said she had not tried to get out. She said:

He talked to me and thought he had a power over me. I didn’t know any better from 11 years old. I didn’t know any better. I wish I did. God, I wish I did.

She was then asked about an episode where, according to the defence, she had asked her brother to take her and her friend (D) to the river to go swimming. She said that she could remember D ‘being in the car with myself and my brother a hundred per cent [but] I do not have any memory of the river incident, I apologise.’ The jury were entitled to view this as the answer of a credible witness. Instead of denying the episode entirely, she acknowledged that she and her friend were in the car being driven by her brother.

It was well open to the jury, in my view, to reject the defence contention that these aspects of the complainant’s conduct were inconsistent with her having been abused by her brother. As is illustrated by the expert evidence held to be admissible in MA v The Queen, conduct of this kind is ‘neither necessarily inconsistent with the allegations [the complainant] made … nor an abnormal responding to offending of the type [the complainant] described’.[11] Although the alleged assaults took place when she was a child, the complainant was giving evidence as an adult. When challenged on her ‘inconsistent’ behaviour, she was able to give her own explanation of it, by reference to her abuser’s ‘hold’ over her. The jury were perfectly capable of assessing that explanation, and it was open to them to accept it.
[11](2013) 226 A Crim R 575, 579 [21].

Complaint evidence of K

K’s evidence of complaint was clear and strong. At the same time, it was no more detailed than would be expected almost 20 years after the conversation. K recalled sitting outside the classroom with the complainant and with L. The complainant had been upset in the classroom and the teacher told them to go outside. K was absolutely confident that L was there. She was unshaken by being told that L had no recollection of hearing anything from the complainant about sexual assault.

K recalled that the complainant was upset and crying. She had said something along the lines of, ‘My brother makes me have sex with him’. She recalled the complainant saying that she had told her mum and dad but that her dad did not believe her. She recalled ‘feeling really, really sad and… horrified’. There was no cross-examination about the complainant’s contact with K in 2012, other than to point out that a number of the details about the conversation were mentioned to her by the complainant in the Facebook message. Importantly, defence counsel did not put to K that she had no independent recollection or that she had made up her evidence in order to assist the complainant. (Defence counsel nevertheless raised in final address the question of whether K had an independent recollection.)

The jury were entitled to view this as powerful complaint evidence, from someone with no interest in the matter and no subsisting friendship with the complainant. There was no challenge to the complainant’s evidence that K had initially been reluctant to come forward. Defence counsel did not explore that issue with her. In other words, nothing emerged which threw into question the complainant’s account of why she had contacted K. K did say that, after she had given video evidence for the committal, the complainant had said to her ‘thank you

for going and doing that’. K rejected the defence suggestion that they had discussed the evidence she had given and how the case was going.

KYROU JA

KAYE JA:

After a trial before a County Court jury, the applicant was convicted of three counts of rape, seven counts of incest, and five counts of indecent act with a child under the age of 16 years. Three other charges, which were alternative charges, were discharged. After a plea hearing, he was sentenced to a total effective term of 7 years and 6 months’ imprisonment with a minimum non-parole period of 4 years and 6 months. The applicant seeks leave to appeal against conviction on the ground that the verdicts of the jury are unsafe and unsatisfactory in that a jury acting reasonably must have had a doubt as to the credibility and reliability of the evidence of the complainant.

The applicant is the brother of the complainant. The applicant was born in August 1977, and the complainant was born in September 1982. The applicant’s parents separated in 1992. The complainant remained living with their mother, and the applicant moved in with his father, and his father’s new partner. In about 1993, the complainant commenced to have access visits to her father’s home. The offending, in respect of which the applicant has been convicted, occurred between 1994 and December 2000.

The charges — the complainant’s evidence

Charge 1 related to an incident that occurred during 1994 at the applicant’s father’s property, when the complainant was having an access visit to her father. At that time the complainant was approximately 11 to 12 years of age, and the applicant was approximately 16 to 17 years of age. The complainant’s bedroom was at one end of the hallway. In order to get to it, she had to walk past the applicant’s

bedroom. On one occasion during that access visit, the applicant came out of his bedroom, stopped the applicant, and told her that he could teach her how to kiss. He started kissing her on the lips, and then began kissing her with his tongue (charge 1 — indecent act with a child under 16 years).

The offences, that were the subject of charges 2 to 4, were alleged to have been committed some time in 1994 and 1995. The applicant again approached the complainant in the hallway and kissed her on the mouth (charge 2 — indecent act with a child under 16 years), he rubbed his hands over her breasts (an uncharged act) and over her vagina over her clothes (charge 3 — indecent act with a child under 16 years). The applicant then instructed the complainant to touch his penis. When she said she did not wish to do so, he used his hand to rub her hand on his penis over his clothes (charge 4 — indecent act with a child under 16 years).

The next three charges concerned offences alleged to have occurred during an access visit in 1995. At that time the complainant was in Year 7 of high school. As the complainant was walking past the applicant’s bedroom, he grabbed her arm and pulled her into his bedroom. The applicant started to kiss the complainant on the mouth (charge 5 — indecent act with a child under 16 years). He put his hands inside her pants, touched and penetrated her vagina with his finger (charge 6 — incest). The applicant then attempted to get the complainant to take her top off, but she resisted. He then pulled off her pants and underwear and inserted his penis into her vagina, moving it in and out until he ejaculated (charge 7 — incest). The applicant was on top of the complainant. She said that she was scared, she did not want the applicant to do it, and he responded that it was his job to teach her these things and that she would enjoy it.

A short time after that incident, on another occasion, the applicant pulled the complainant into his bedroom again and inserted his penis into her vagina (charge 8 — incest). The complainant told the applicant she did not want him to do it, and again he told her that it was his job to teach her those things. At the conclusion of the incident, the applicant told the complainant that she should not tell anybody that it had happened and that it was to be their secret.

On another occasion, during 1995, the applicant and the complainant were at their mother’s house. Their mother was not home. The applicant told the complainant to go into their mother’s bedroom. When she said that she did not wish to do so, the applicant’s tone became more angry. The applicant raised his voice and told her that she had to. The complainant was frightened of the applicant and so she complied. The applicant removed his trousers, and the complainant’s trousers were removed by either herself or by the applicant. (She could not remember which). The applicant instructed the complainant to get on top of him, and she said that she did not wish to do so. He told her that they needed to do it. Accordingly the complainant complied and got on top of the applicant. The applicant put his penis into her vagina, instructing her to move down on his penis. At the time the complainant was crying because she was in a lot of pain. (Charge 9 — rape).

The complainant was crying and told the applicant that it hurt. After a few minutes the applicant told the complainant to get off him, and he told her that he wanted her to suck his penis. The complainant resisted, so the applicant pushed her head down onto his penis. As a consequence the complainant did what the applicant told her to do, and sucked his penis. (Charge 11 — rape). The applicant then told her to stop, and he told her to lie on her back. The applicant got on top of her and put his penis into her vagina. (Charge 13 — rape). The complainant was very upset, and the applicant told her not to tell anyone, that again it was their secret and it was meant to be. He told her that even if she told anyone else, no-one would believe her.

The complainant stated that between 1995 and 1998 there were many times when such incidents occurred between the applicant and herself, and that because there were so many occasions, they ‘blurred’ into each other. On one occasion, in 1997, the applicant took her into their mother’s bedroom, and was on top of her having sex, when the condom broke. The applicant did not realise that it had broken until he had had an orgasm. As a consequence both the applicant and the complainant were worried and upset. These incidents were treated as uncharged acts in the trial.

In evidence in chief, the complainant stated that because of their concerns, the applicant told their father that the complainant needed a morning after pill because she had had sex with her boyfriend. The complainant stated that she had not had sex with her boyfriend. However, when her mother questioned her about that matter, she admitted to having sex with the boyfriend, and her mother took her to the doctor to obtain the morning after pill. The complainant stated that at that time she was in Year 9 of high school, and she was about 15 years old.

The next incident occurred in about 1996 to 1997, when the complainant was at her father’s property for the purposes of an access visit. The applicant was living in that property in a caravan. He persuaded the complainant to enter the caravan. Immediately after she did so, he shut the door quickly behind her, started to kiss her, and told her to get onto his bed. The applicant got on top of the complainant and had penile-vaginal intercourse with her (charge 15 — incest).

The applicant stated that the last occasion on which the applicant abused her at her mother’s address was in 1999. On that occasion the applicant and the complainant were in their mother’s bedroom. The applicant was on top of the complainant, and had penis-vagina intercourse with her (charge 16 — incest).

The complainant stated that the last occasion on which she was abused by the applicant was in 2000. She had just got her driver’s licence. When she reversed her mother’s car out of the driveway at her mother’s property, she damaged the vehicle on a letter box. The complainant’s mother arranged for her to drive the vehicle to meet the applicant so that he could fix it. Accordingly the complainant drove the vehicle and met the applicant in a car park. The applicant was then working as a mechanic in a large factory. The complainant and the applicant drove to that factory, and the applicant temporarily repaired the vehicle. He then invited the complainant to his residence to have a pizza. Accordingly, the complainant followed the applicant’s vehicle to his unit. Once they arrived at his residence, the applicant took her into his bedroom and told her that he wanted to have sex with her. He started to kiss her, and he removed her clothing. The complainant said to the applicant that she did not want to do that, and that she was there to have dinner. The applicant removed his clothes, and lay down on his bed. He told her to go on top of him, and when she did so, he guided his penis into her vagina, and told her to move up and down. The applicant told the complainant to be quiet because his boss lived in the adjoining unit. (Charge 17 — incest). The applicant then said that he wanted the complainant to perform oral sex on him, and she complied, by putting his penis into her mouth (charge 18 — incest). Afterwards the applicant ordered a pizza, which he and the complainant shared at his dining table. In her evidence, the complainant gave a detailed description of the layout and features of the applicant’s unit. She said that she had located the applicant’s residence on Google Street View. Three photographs of the residence were tendered in evidence as Exhibit 1. That evidence was adduced in response to the denial by the applicant, in his record of interview, that the complainant had ever been to his unit.

Complaint evidence

The complainant gave evidence that she told two friends about what her brother had done to her. She said that either at the end of Year 7, or at the commencement of Year 8, she became upset during a woodwork class that she was attending. She went outside, and was sitting in a corridor. She then told a school friend (K) that she had been raped by her brother, and that he had been sexually abusing her. The complainant stated that there was another girl present (‘L’), but she did not know whether the other girl was there while she was describing to K what had occurred.

On another occasion, when the applicant was in Year 8 or Year 9 at high school, she told her best friend (‘J’) that she was really scared of her brother and that he had been forcing her to have sex with him. She told J that her brother had been sexually abusing her and teaching her things like how to kiss, and telling her that it was his job to tell her how to do those sexualised things.

Evidence was led through the informant that in October 2008, in the course of counselling sessions with a psychologist, the complainant told the psychologist that she had been sexually abused by her brother. In addition, the informant had obtained notes of the complainant’s general practitioner which indicated that on two occasions in December 2008, the complainant told the doctor that she had been sexually abused by her brother.

Cross-examination of complainant

The cross-examination of the complainant was, to a substantial extent, directed to inconsistencies between the complainant’s evidence and evidence given by other witnesses in the trial, and to attempts by the complainant to persuade those witnesses to alter or reconsider the versions that they had given to the police. Those matters were at the forefront of the final address made to the jury by counsel for the applicant. It is convenient to summarise the cross-examination of the complainant, and the evidence of those witnesses, together, broadly in the order in which they were addressed in cross-examination of the complainant.

Cross-examination concerning complaint to K

The complainant was cross-examined, at some length, concerning the complaint that she said she had made to K outside the woodwork class when she was in Year 7.

At the trial, K gave evidence that when she was in Year 7 at school, she had a conversation with the complainant who was sitting outside the classroom and was upset and crying. K said that she and L were both present during that conversation, in which the complainant stated ‘My brother makes me have sex with him’. K also stated, in her evidence, that she asked the complainant whether she had told her parents, to which the complainant responded that she had told her mother and her father and that her father did not believe her.

The prosecutor read a statement by L to the jury in lieu of calling her to give evidence. In her statement, L said that she could remember the complainant attended the same school as her. L further stated that she could not remember the complainant ever telling her anything about being sexually assaulted. L said:

While I was at school I was a bitch. If I had been told that, I would have done something about it. That is the sort of thing that I would remember if I was told.

The complainant was cross-examined about the difference between her evidence, and the evidence given by K and L. She agreed that in the statement that she initially made to the police she said that ‘two friends at the time [K and L] asked me what was wrong and I reluctantly told them I’d been raped by my brother’. She agreed that after she made her statement she learnt that L did not recall being told by her of the sexual abuse. In cross-examination, the complainant stated that she was not sure if L walked in after she had told K about the sexual abuse, but she could remember L being there and seeing her upset. She denied that in that way she was trying to change her evidence. She said that L was definitely present, but she could not recall whether L arrived after she had already told K about the abuse.

The complainant also agreed that she did not tell her father about what her brother had done to her. She said that she did not tell either of her parents, because she did not feel comfortable about talking to her father. She could not recall saying to K that she had told her father about the abuse and that her father did not believe her. The complainant stated that she had not discussed the case with K, other than on one occasion when the case got ‘dropped’, and the complainant telephoned K to say how that affected her. The complainant said that the informant (Detective Senior Constable M) had told her that it would be a good idea for her to telephone K and talk about the case with her. The complainant insisted that she spoke to K at a stage at which the case had been ‘dropped’.

The complainant agreed that in her evidence at the committal she had stated that there had been no communication between K and her about the case. She agreed that she did send a Facebook message to K asking her whether she remembered that, in Year 7 or Year 8 at school after or during a woodwork class, the complainant had told her what her brother had done to her. When that Facebook message was put to the complainant in cross-examination, she said that she sent that message before she went to the police. The complainant also agreed that, at the committal proceeding, she agreed that there had been Facebook contact between herself and K, but that she had had no contact on Facebook with K concerning the case. In cross-examination, the complainant said that by that answer she meant that she had no contact on Facebook with K after she (the complainant) had gone to the police. She said that she had discussed the matter with K at the beginning of May 2012, but that she did not go to the police until 24 May 2012, when she made her first statement to the police.

The complainant further stated that in August 2013 the informant told her that the case was not going to proceed, and that one of the main reasons was that K was too scared to testify for the prosecution. The complainant said that the informant told her that if she wanted to, she could contact K, and ask her to come forward. When challenged by counsel on that matter, the complainant insisted that the informant ‘definitely’ told her that he had a discussion with K, and told her that she could contact K when the case had been dropped. She said that when she telephoned K, she told her how much the abuse by her brother had affected her, and that she would appreciate it if K would be brave and come forward.

Finally, on this topic, the informant agreed (in cross-examination) that he had told the complainant that K had indicated that she did not want to be involved in the case. The informant said that he did not tell the complainant that it would be a good idea if she could try and persuade K to make a statement.

Cross-examination concerning complaint to J

The complainant was also cross-examined about the complaint that she said she had made to J while she was in Year 8 or Year 9 of high school, in which she said that her brother had been sexually abusing her.

J was called to give evidence at the trial. She said that in 1996, while the complainant was staying at her mother’s house, the complainant told her that the applicant had raped her, and that he had grabbed her and pushed her onto the table. In cross-examination, J agreed that she made a statement to the police on 8 August 2014, in which she said that the complainant had told her that in the course of that incident, the applicant had ripped the complainant’s bra, and that when he was penetrating her, the condom broke. J said that the complainant told her that she was afraid that she might be pregnant because the condom broke, but that she was too scared to tell her mother of her fears, because the applicant had threatened to kill her.

In cross-examination, the complainant stated that there was no occasion upon which the applicant had raped her over a table and had ripped her bra. She denied that she had told J that the abuse had happened to her in that way. She said that the applicant was forceful, but she could not remember him pushing her onto a table or ripping her bra. She also said that she could not recall telling J that the condom broke. She said that there was an occasion in 1997 when the applicant abused her and the condom broke.

Cross-examination concerning uncharged acts and complainant’s relationship with N

In cross-examination of the complainant, and in final address, counsel for the applicant focused significantly on the evidence of the complainant that, on one occasion when the applicant was having sex with her, his condom broke, as a consequence of which both the applicant and the complainant were concerned that she might become pregnant. Counsel for the applicant sought to make a number of points relating to that aspect of the complainant’s evidence. First it was contended that in fact the complainant, in alleging that the incident involved her having sex with the applicant, was actually describing an occasion when she had sex with her then young boyfriend, N. Secondly, the defence relied on attempts that were made by the complainant to induce N to change his evidence about that incident.

The applicant’s evidence was that she had a relationship with N in Year 9, when they were both 15 years of age. In the first statement that the complainant made to the police (on 24 May 2012), she said that she did not have sex with her then boyfriend. She said ‘I was very shy around boys and even found it hard to talk to males at all’. In cross-examination, she agreed that her then boyfriend was N, and, when challenged about that part of her statement she said ‘I definitely didn’t have sex with [N]’.

N made a statement to the police on 19 September 2012, and gave evidence at the trial, to the effect that when he was in Year 9 at school, he had a relationship with the complainant. He said that on one occasion, when it was close to his birthday, the complainant came to his house in town A, and that he picked her up at the train station. He said while they were walking back towards his house along a laneway, they found a tree or bush. He said that they started kissing, and the complainant said she wanted to give him a birthday present. N stated that they then ended up taking off their clothes and lying on them. N put a condom on, and commenced to have sex with her. However, in the course of doing so, the condom broke. N said that a couple of weeks later the complainant told him that she might have been pregnant and as a result he ‘freaked out’. N also said that the complainant had told him that she was not a virgin and that she had had sex with one of her brother’s friends.

In cross-examination, N agreed that he had a number of good reasons to remember the experience that he had described with the complainant, because it was the first time that he had ever had sex. Further, after the complainant told him she might be pregnant, he was very scared. N also confirmed in cross-examination that after he applied the condom, he penetrated the complainant’s vagina with his penis. N further stated that in August 2013 the complainant messaged him and tried to convince him that they did not have sex on the occasion that he had described. N stated, however, that he was adamant that his memory was that they did have sex. N also stated that he never spoke with the applicant about the sexual encounter that he had with the complainant.

In cross-examination, the complainant reiterated that after she had sex with the applicant in the course of which the applicant’s condom broke, she told her mother that she had had sex with N. She said that she told her mother a lie in that respect. She stated that on one occasion when she went to N’s house, he told her he wanted to have sex with her and she agreed to it. She said that she felt she had to go along with whatever a boy said. She denied that it was her idea. She said that the conversation with N occurred while they were walking near some bushes. N produced a condom. She denied that they lay on the ground behind some bushes. She said that N could not get an erection, and she denied that he penetrated her vagina with his penis. She said that they did not have sex that day. N could not get an erection, and he masturbated behind a bush to try to get one. She said that they were kissing, they had their pants off, but N could not get an erection, and he could not put the condom on. The complainant stated that N’s penis went nowhere near her vagina. The complainant denied that she contacted N a few weeks later and told him that she had missed her period. When it was put to her in cross-examination that N and she decided to wait until she did a proper pregnancy test before telling their parents, the complainant responded:

This is all news to me. I have no idea why he recalls it that way unfortunately. I didn’t have that conversation.

The complainant said that the informant gave her details of N’s statement. She said that she decided to contact N when she was told that the case was dropped. The complainant agreed that in her first statement to the police (dated 24 May 2012) she said that she had never had sex with N. When she found out that N had a different recollection, she sent him a Facebook message (on 16 August 2012) suggesting that they had come ‘close to having sex’ but that N had to go behind a bush and ‘things didn’t go any further’. She agreed that N responded by stating that his memory was that they did have sex but he did not ‘come’. The complainant agreed that she then responded with another Facebook message to the following effect:

I’m sorry but is it okay if I talk to you about this as this is the only thing stopping him from going to gaol at the moment as police say it undermines my credibility.

The complainant said that at that time the informant told her that the case had been put on hold, because K did not wish to give evidence, and because N had a very different recollection of what happened to her recollection. She said that she wanted to talk to N to see if there was any chance that he might be mistaken in his recollection. She agreed in cross-examination that she wanted to get N to change his evidence. She agreed that she then sent another Facebook message to N in the following terms:

Is it possible that it wasn’t hard enough and so only touched and didn’t go in fully and penetrate. Sorry about this, but that’s what I remember.

The complainant agreed in cross-examination that, on her account of the events, the version that she suggested to N did not occur. When asked if she was presenting N with a false account, hoping he would agree with it, she said ‘not entirely no’. She said ‘… I was just trying to get his memory working that’s all’. She then agreed that the version suggested by her in the Facebook message was a ‘false version’. When pressed further she said:

I didn’t want to change his evidence, I just wanted him to remember that we didn’t have sex.

The complainant further stated that she contacted N because the informant had told her that she could contact K when she found out that K was not cooperating. She said that N responded to the Facebook message by stating that while he could not remember ‘a hundred percent’, he thought that they did have sex, and he remembered that the condom broke, and that the complainant thought she might be pregnant. The complainant agreed that she then responded with another message stating:

I understand, but I’m pretty sure there was no penetration, we just touched. I appreciate this. Just trying to work this out.

She agreed that when N would not change his evidence, she made a second statement, setting out a narrative to the effect that they went into the bushes, and N could not get an erection.

The complainant denied that she spoke to the applicant about her encounter with N, stating:

I would never have talked to him about it. He would be the last person on earth.

In the course of cross-examination of the complainant, counsel for the applicant was provided with further emails sent, and Facebook messages posted, by the complainant. In further cross-examination, counsel referred to a lengthy email sent by the complainant’s husband to the informant and to the officer in charge (Detective Sergeant P) dated 18 August 2012, imploring them to review the evidence and to reconsider their decision not to proceed with charges against the applicant. Counsel also noted that on the next day, the officer in charge sent a reply that the police would further consider the matter. The complainant agreed that that meant that the inquiries were still continuing. She also accepted that her last contact with N, when she attempted to persuade N to change his account, took place on the next day, 20 August.

The father of the applicant and of the complainant, F, was called on behalf of the prosecution. He gave evidence that after he separated from the mother of the applicant and the complainant, the applicant lived with him. On one occasion, when the complainant was 15 years of age, the applicant told him that the complainant had been having sex with a boy in town A, and that she might be pregnant. F said that he did not talk to the complainant about that matter, as the applicant had told him about it in confidence, but that he spoke to the complainant’s mother about it.

When the applicant was interviewed by the police, it was put to him that the complainant had alleged that when she was going out with N, the applicant forced her to have sex with him, and the condom broke. It was also put to the applicant that he had told the complainant to tell everyone that she was having sex with her boyfriend and that she was to get the morning after pill. In response, the applicant said to the police that the complainant had told him that she had had sex with a boy in town A, that the condom broke, and that she thought she might be pregnant. He said that the complainant was too scared to tell her parents that she might be pregnant, so he told them.

Cross-examination concerning dispute over mother’s will

As set out above, the complainant lived with her mother after she separated from her father. In 2006, her mother made a new will appointing the complainant as the sole executor. By that will, she left a sum of $10,000 to the applicant, and the residue of her estate to the complainant. She died on 25 June 2009, and probate of her will was granted on 24 September 2009. In March 2010, the applicant commenced proceedings, under Part 4 of the Administration and Probate Act 1958, for further provision out of his mother’s estate. Those matters were the subject of a number of issues raised in cross-examination of the complainant. In particular, counsel for the applicant sought to rely on those matters as demonstrating that the complainant had a financial motive to persist with and pursue her allegations against the applicant. In addition, it was contended that the complainant gave a number of inconsistent answers in her evidence relating to this aspect of the case.

In cross-examination, the complainant agreed that, before the conclusion of the six month period after the grant of probate, she had distributed the assets of her mother’s estate. The amount received by the complainant from the estate was $200,000. During that period, the complainant and her husband purchased a new home, and she used the amount of $200,000 that she received from the estate as part payment for it. She agreed that subsequently, in March 2010, the applicant commenced proceedings claiming provision from his mother’s estate. In August 2010, a meeting was held between the applicant’s legal representatives and the complainant’s legal representatives. The complainant said that she had told her lawyer of the sexual abuse of her by the applicant. She agreed that following that meeting, the complainant’s solicitors wrote a letter to the applicant’s solicitors stating that if the applicant ceased to contest the will, she would not claim compensation against him arising out of the sexual abuse to which he had subjected her. In her statement to the police the complainant referred to that offer, and said that she and her lawyers did not hear anything further from the applicant until December 2011. It was put to the complainant that that was false, because the day after the offer was made, the applicant’s solicitors responded rejecting the proposal that the applicant withdraw his suit. In their letter, the applicant’s solicitors stated:

Your client’s offer is rejected. We have instructions to accept service.

The complainant agreed that after the applicant had rejected the offer, she did not commence legal proceedings seeking compensation against him. In March 2012, when it became clear that the applicant was proceeding with the civil action, she made an affidavit in those proceedings. In that affidavit she raised allegations of sexual abuse by the applicant. Subsequently, on 24 May 2012, she contacted the police and made a statement. She denied that she knew that if the applicant was successful in the litigation, she and her husband would be in a difficult position financially. She said that if the applicant had succeeded in the litigation, and been awarded $100,000, she and her husband could have added that sum to their existing mortgage.

In cross-examination, the complainant strongly denied that she had been contacting potential witnesses, such as K and N, because of her concern that the outcome of the criminal proceedings against the applicant had a direct relationship with the outcome of the civil litigation. She agreed that the civil litigation was on hold until the criminal matter was over. However, she insisted that she did not consider that the outcome of the criminal matter had a direct relationship with the outcome of the civil proceedings concerning her mother’s will. She agreed that on 2 January 2013 her lawyers had sent a letter to an officer of the Supreme Court stating that the complainant had initiated a criminal investigation in respect of the conduct of the applicant towards her, that the police were investigating the matter, and that it was part of the case of the complainant that the outcome of those matters was material to the Court’s consideration of the claim made by the applicant in the civil action relating to the will of his mother.

Other matters in cross-examination

A number of other matters were explored in cross-examination with the complainant. They can be briefly summarised as follows.

In cross-examination, the complainant agreed that it was never part of her account that the applicant had indecently assaulted any of her friends. However, the informant gave evidence, in cross-examination, that on 18 August 2012, the complainant and her husband sent an email to the police stating (inter alia) that the applicant had indecently assaulted many of the complainant’s friends over a protracted period.

In cross-examination, the complainant was asked a number of questions about the communications that passed between her (and her husband) and the police, particularly at the point at which the police had indicated that they would not proceed with charges against the applicant. The complainant claimed that those contacts with the police were simply requests for ‘updates’ of what was happening. Counsel then referred to the lengthy email sent by the complainant’s husband to the officer in charge (Detective Sergeant P), in which he said ‘we implore you to review the evidence’, and to meet with the complainant and her husband, and to give further consideration to whether the charges should be laid. In cross-examination of the informant, counsel also referred to an email sent by the complainant to Detective Sergeant P in which she stated that, unless she received ‘greater involvement’ from Victoria Police, she had no option but to raise her concerns with the Ombudsman or with the IBAC.

Cross-examination of complainant concerning alleged offences

In cross-examination concerning the offence that was the subject of charge 15, the complainant agreed that if she had been subjected to the pattern of abuse that she had described in her evidence, the last place she would have wanted to go to with the applicant was his caravan. She agreed that on her version of the events, she had agreed to enter the caravan where she alleged the sexual offence took place.

In respect of the last incident that the complainant alleged had taken place (and that was the subject of charges 17 and 18), the complainant agreed that the events that she described took place when the applicant had invited her back to his place after he had repaired her vehicle at his place of work. She agreed that, as the applicant had abused her over many years, the ‘last place on earth’ she would be wanting to go back to was the applicant’s house. She also agreed that the applicant did not threaten her that she had to come back to his house. Rather, she claimed that he had a ‘psychological hold’ over her. She said:

if someone’s abused for so many years, these — these people have a hold on you, you — you fear them. You think that you have to do everything that he says or he’s going to hurt you. He threatens me, he threatened me.

The complainant then clarified that evidence by stating that the applicant did not threaten her on that day, but he had threatened her on previous occasions. She also agreed that at the committal proceeding she had said that she did not think that anything was going to happen if she went back to the applicant’s place, because ‘I always wanted to hope that there was good in him’.

In re-examination, the complainant stated that the photographs that had been tendered in her evidence, relating to those events, have been located by her on a webpage on the internet. She agreed that the link also contained a floor plan. Additional photographs (obtained from the webpage) and a copy of the floor plan were tendered as further exhibits. She also agreed that at the committal proceeding, when asked why she accompanied the applicant back to his unit on that occasion, she did so ‘because I was stupid, under his power still somehow’.

The complainant further agreed, in cross-examination, that she did not suggest that in any of the incidents that she had described, the applicant had taken precautions such as shutting the doors of the rooms in which the abuse took place. She agreed that she did not suggest that on any of those occasions anyone else had seen anything happen, notwithstanding that the abuse occurred ‘regularly’.

The complainant also agreed that she had alleged that the applicant would attempt to sexually abuse her when he drove her to or from her access visits to her father. She disagreed with the proposition put to her by counsel that on those access visits either her mother or father would drive her, and not her brother. In that respect the applicant, at the trial, relied on the evidence of F (the father) that either his ex-wife or he would transport the complainant to and from the access visits, and that the applicant was not involved in transporting her on those occasions. In addition, in cross-examination, the complainant agreed that she remembered being in a vehicle driven by the applicant, and in which a friend of hers, D, was present. D gave evidence that she went to high school with the complainant, and that on one occasion the applicant drove the complainant and herself to have a swim. She said that she was 14 or 15 years of age at the time.

Other evidence

As already mentioned, the applicant’s father, F, was called as a witness on behalf of the prosecution. In addition to the evidence referred to above, in cross-examination, he stated that the complainant never made a complaint to him that the applicant had sexually abused her. He said that there was nothing unusual in the manner in which the applicant and the complainant related to each other.

Finally, as stated, the applicant participated in a record of interview conducted by the informant on 7 August 2012. The recording of the interview, and a transcript of it, were tendered in evidence. In the interview, the applicant denied the allegations of sexual abuse made by the complainant. As mentioned, in respect of the offences that were the subject of charges 17 and 18, he agreed that in late 2000 or early 2001 the complainant had damaged her mother’s vehicle on a letter box, as a result of which the complainant brought the vehicle to the applicant’s place of work for him to fix. He said that on that occasion he repaired the vehicle, after which she left. He denied that the complainant had ever been to his unit.

Submissions

Senior counsel for the applicant submitted that in light of the evidence at trial, the guilty verdicts of the jury were unsafe and unsatisfactory, in that a jury, acting reasonably, must have had a reasonable doubt as to the credibility and reliability of the evidence given by the complainant in relation to each of the offences that were the subject of the charges against the applicant.

In support of that submission, counsel placed significant weight on the issues relating to the denial by the complainant that she had had sex with her boyfriend, N, when they were 15 years of age. As the foundation to those submissions, counsel contended that the jury could not have rejected the evidence of N that, on the occasion described by him, they did have sex. Counsel pointed out that there were a number of reasons, established by the evidence, why N would accurately recall what occurred on that occasion. N’s evidence was not challenged, and the prosecution did not seek leave to cross-examine him under s 38 of the Evidence Act 2008. Further, in final address, the prosecutor did not proffer to the jury any reason why the memory and evidence of N might be unreliable in that respect.

Based on that evidence, counsel made a number of contentions which, he submitted, should have been of critical weight in the jury’s assessment of the credibility and reliability of the evidence given by the complainant against the applicant.

In the first place, counsel referred to the evidence of the complainant that, after the incident in which (she alleged) the applicant had had sex with her, and his condom had broken, he then invented a ‘cover story’ to give to their parents as to why she might be pregnant, in circumstances in which that invented ‘cover story’ actually accorded with the true facts. Secondly, counsel noted that, on any view of the evidence, the applicant could not have known of the incident in which the complainant had had sex with N unless the complainant told him about it. Yet (as conceded by the complainant) it was inconceivable that the complainant would have told him of such an intimate and confidential matter, if in fact the applicant, at that time, was regularly abusing her sexually. Thirdly, counsel noted that the account given by the complainant, and the account given by N, were radically different. Those differences could not be attributed to the faulty memory of either witness. As the jury had no basis upon which to reject the evidence of N, it should have been persuaded that the evidence of the complainant in that respect was untruthful. In particular, counsel noted that, in fact, the complainant gave three separate versions of the incident, each of which was different. Fourthly, and related to that point, counsel referred to the conduct of the complainant in endeavouring to induce N to alter his evidence concerning the matter, even to the point of seeking to induce N to give a version of the events that the complainant herself conceded was not truthful. Fifthly and finally, counsel noted that the complainant falsely claimed (in cross-examination) that she only contacted N concerning his evidence when she understood that the case was not proceeding. However, as noted by counsel, the complainant contacted N on 20 August 2012, immediately after she had been told (on 19 August) that the police were continuing to investigate the matter.

On the other hand, the complainant had advanced three different versions of the same incident. In her first statement to the police, she baldly said that she had not had sex with N. In support of that, she said that she was shy with boys (thus implying that it was implausible that she would have had sex with him). After the complainant learnt that N had given a different account of the incident, she then sought to persuade N to accept a ‘compromise’ version of the incident, that she herself admitted was false. When N did not agree to that version, she then advanced a third version of the incident, that they attempted to have sex, but were unable to do so because (she alleged) N was unable to maintain an erection.

The differences between each of the three versions advanced by the complainant on the one hand, and N’s recollection, went well beyond mere matters of detail. As the prosecutor correctly conceded to the jury, the two accounts were ‘in conflict’. In circumstances where, we consider, it was not open to the jury to reject the evidence of N on that matter, the jury could not have reasonably concluded that the complainant was giving truthful or reliable evidence concerning that incident. In other words, the jury must have considered that the complainant was being deliberately untruthful when giving her version (or versions) of the incident that occurred between herself and N.

That conclusion is supported by two further considerations. First, in cross-examination, the complainant agreed that when she spoke to her mother about her concerns that she might be pregnant, she told her mother that that was because she had had sex with N. It must be borne in mind that at that time the complainant was 15 years of age. In those circumstances, she must have known that it was quite probable that her mother might have contacted N (or his parents), in circumstances in which it was apprehended that he had caused the complainant to become pregnant. The second consideration, relevant to this matter, is the evidence of N that, shortly after their sexual encounter, the complainant had telephoned him to warn him that she might be pregnant. The complainant, in her evidence, denied making that telephone call. However it is most unlikely that N would have misremembered, or invented, that conversation. It is highly improbable that the complainant would have made that telephone call, if, as she maintained in her evidence, she had not had sex with N. As we have stated, those two considerations add further support to our conclusion that, in the circumstances of the case, it was not open to the jury to reject the evidence of N, with the consequence that the jury could not reasonably have concluded that the complainant was giving truthful or reliable evidence concerning that matter.

That conclusion, of itself, is significant, because in cross-examination, the complainant gave a quite detailed account of her version of her encounter with N, which the jury (on our analysis) could not reasonably have accepted as being truthful. It follows that, in that respect, the jury should have concluded that the complainant fabricated her version of that encounter. We interpolate that, similarly, if the jury accepted J’s evidence, the jury must have concluded that the applicant described to her an incident that, on the applicant’s own evidence, did not occur.

More importantly, the complainant stated in her evidence that she did not tell the applicant that she had had sex with N in circumstances in which his condom had broken, as a result of which she was fearful of becoming pregnant. N stated that he had not spoken to the applicant concerning that issue. He also said that he did not think that he had ever met or spoken to the applicant. There was no evidence as to how the applicant could have known of that circumstance, if he was not told about it by the complainant. On the complainant’s version, however, on an occasion when the applicant had sex with the complainant in the course of which his condom broke, the applicant just happened to invent a ‘cover story’ to tell to their parents, that was identical to the true facts of the episode that had taken place between the complainant and N.

Two important points arise from that circumstance. First, it would defy the principles of logical plausibility to suggest that the applicant, by sheer coincidence, just happened to hit upon a ‘cover story’ that (entirely unknown to him) was true. In other words, it was not open to the jury to infer or hypothesise that the explanation for the applicant’s ‘cover story’ was that of coincidence. In circumstances in which no other person could have told the applicant about that incident, the jury would have been driven to accept that it was the complainant who told the applicant about the true facts of what had happened between herself and N.

Secondly, and connected with that, such a conclusion would be contrary to the sworn evidence of the complainant, who strongly denied that she had told the applicant of the incident that took place between herself and N. As she stated herself, in light of the fact that (according to the complainant) the applicant had sexually abused her for some time, she would never have talked to him about what had occurred with N. In response to a question about that, the complainant stated that the applicant ‘would be the last person on earth’ who she would have told about that matter. If the complainant was a witness of truth in relation to the abuse of her by the applicant, it would, indeed, be unlikely that the complainant, in those circumstances, would have told her brother about such an intimate matter. The fact that, on the evidence, the jury ought to have inferred that the complainant told the applicant of that event, militated importantly against the truthfulness and reliability of the evidence of the complainant in relation to the abuse to which she alleged she had been subjected.

There is an additional consequence of the matters that we have just discussed concerning the N encounter. The jury was bound to accept that when the applicant told their father, F, that the complainant was concerned that she might be pregnant because she had had sex with her boyfriend, on any view of the evidence, he did so in the context of an incident in which the condom on the male with whom she had sex had broken, as a result of which she feared she might be pregnant. As we have stated, the jury was bound to accept that that occurred as a result of the encounter between N and the complainant when, on N’s evidence, they had sex, in the course of which his condom broke. It was never suggested by the complainant, or by any other evidence, that there were two occasions at that time in which she had sex with different people (one of whom was the applicant) and on each occasion the condom broke. It necessarily follows that the jury was bound to reject the evidence of the complainant that on one occasion, when the applicant was having sex with her, his condom broke, as a result of which both of them were concerned that she might be pregnant. In other words, on that analysis of the facts, the jury was bound to conclude that the complainant’s evidence as to that uncharged act was false, and that in that way she had made a false allegation of sexual abuse against the applicant.

The issue relating to the encounter with N was also relevant in another respect, arising from the attempts by the complainant to induce N to alter the version of events that he had provided to the police in his first statement. That aspect of the matter is relevant in relation to the credibility of the applicant for four reasons. First, it is a matter of concern that the complainant took it upon herself to try to alter the recollection of an independent witness. Secondly, she did so by proffering to him a false (‘compromise’) version of the events, in order to induce him to change his account. The complainant agreed, in cross-examination, that on her version of the events, that ‘compromise’ version of the incident ‘… didn’t happen’. She said, ‘…it was a false version’. Thirdly, the complainant’s explanation to the jury for putting the false version to N — that it would ‘open his mind’ — lacked credibility. Fourthly, the complainant maintained that she only communicated with N about that matter when she was told that the case had been dropped. However, the objective facts demonstrated that that answer was untrue. On 18 August, the complainant’s husband sent a lengthy email to the police urging them to continue with their investigations. On 19 August, Detective Sergeant P sent a reply stating that his office would investigate a matter raised by the complainant’s husband, and would ‘further consider the brief as a whole at the conclusion of those new inquiries’. On the next day (20 August) the complainant herself contacted N with the Facebook message suggesting the false ‘compromise’ solution.

Taking those matters into account, it is clear that the complainant could not be accepted as a witness of truth relating to the encounter that she had had with N. It is also clear that her approach to the issue was such that she was prepared to attempt to induce an independent witness to alter his account, and that she was prepared to tell the jury untruths relating to the efforts that she had made in that regard.

In addition, there were also a number of other matters that necessarily undermined the credibility of the complainant as a witness. In particular, the evidence concerning the communications between the complainant and the witness K was highly significant to an assessment of the credibility of the complainant.

It will be recalled that in her evidence in chief, the complainant stated that on one occasion, when she was in either Year 7 or Year 8 at school, she spoke to her friend K outside the classroom, and told her that she had been raped by her brother. The complainant stated that another girl, L, was present, but she did not know if she was there while she described the incident to K.

In cross-examination, the complainant agreed that in her first statement to the police she had said that her two friends, K and L, asked her what was wrong, and she reluctantly told them she had been raped by her brother. Subsequently, she found out that L did not support her version of the events. Accordingly, it is evident that in her evidence she altered her account, to accommodate the fact that L’s evidence would otherwise contradict the complainant’s version.

More importantly, the complainant’s evidence about whether she had had communication with K about the case, was, to say the least, problematic. In her evidence in the committal proceeding, she said that there had been no communication between herself and K about the case. When confronted in cross-examination with a Facebook message that contradicted that evidence, the complainant said that, at that time, she had not gone to the police. Further, and significantly, the complainant sought to justify contact that she had with K in August 2013, on the ground that she had been told by the informant that she could contact K. That evidence was contradicted by the informant, who stated, in unequivocal terms, that he did not tell the complainant that it would be a good idea if she could try to persuade K to make a statement. The informant’s evidence in that regard was not challenged, and no basis was put to the jury, on which it might conclude that he might have been mistaken in that regard.

In that respect, the informant, who had been a member of the police force for 25 years, stated that it was contrary to police practice to have one witness endeavouring to ‘coach’ other witnesses in their evidence. There was no reason why such an experienced police member would have disregarded standard police practice in that way, thus exposing himself, and potential witnesses, to criticism that they had collaborated in the compilation of evidence in the case.

In that context, it was relevant, to the credibility of the complainant, that she had sought to take the role of an advocate, in the criminal proceeding, from the time that she reported the matter to the police. In cross-examination, she maintained that her contact with the police consisted of seeking ‘updates’ of what was happening in the investigation. That evidence was contradicted by the content of emails sent by the complainant and her husband to the police. On 7 August 2013, she sent an email to Detective Sergeant P, stating that unless she received greater involvement from Victoria Police, she had no option ‘but to raise her concerns with the Ombudsman or IBAC’. On 18 August, her husband sent a 3,000 word email to Detective Sergeant P, at the conclusion of which he stated:

We implore you to review the evidence, meet with us and give further consideration to the decision whether or not charges should be laid.

Of course, the fact that the complainant and her husband were passionate in seeking to advance her allegations in the criminal proceeding, does not necessarily detract from her credibility. However, the communications, which the applicant had with the police, and with witnesses, demonstrate that she had sought to go well beyond her role as the complainant and primary prosecution witness in the case. In short, the nature and content of the communications by the complainant with the witnesses K and N, and with the police, were such that the jury could only conclude that the complainant was bent on ensuring that the applicant was convicted. For that purpose, she was prepared to put pressure on witnesses, and the police, to achieve that end.

In that respect, the vigour, with which the complainant sought to pursue the criminal allegations against the applicant, was demonstrated by the false claim, made in the email sent by the complainant’s husband to the police dated 18 August, that the applicant had indecently assaulted many of the complainant’s friends over a protracted period. On the complainant’s own evidence, that allegation was untrue. The respondent, on this application, relied on evidence given by the complainant, in a voir dire, that the applicant had made inappropriate sexualised remarks to her friends. That evidence (on the voir dire) cannot, in our view, provide a credible explanation for the false allegation made to the police by the complainant’s husband in the email dated 18 August. On any rational view, there is a stark distinction between, on the one hand, the use of inappropriate language, and, on the other hand, an allegation of indecent assault.

As counsel for the applicant stated, the backdrop to the matters, which we have just discussed, was the dispute between the applicant and the complainant over the dispositions made in their mother’s will.

It is true, of course, that the complainant had already complained to her school friends, and (in 2008) to a psychologist and a medical practitioner, that the applicant had abused her, before the dispute arose between the applicant and the complainant relating to their mother’s will. However, the complainant only approached the police about the abuse allegations after the applicant had peremptorily rejected the offer that she had made not to proceed with a claim for damages for the alleged sexual abuse, if the applicant withdrew his claim for further provision under his mother’s will.

In cross-examination, the complainant strongly denied the suggestion that she had any concerns about the financial impact of the outcome of the civil proceeding on her and her husband. That denial of itself lacked credibility. If the applicant succeeded in the civil proceeding, the complainant and her husband would have had to substantially increase the mortgage debt on their family home. Indeed, the jury would have been required to consider why the applicant would have been prepared to settle the civil proceeding on the terms that she proffered, if she did not have some concerns as to the financial impact of those proceedings. Further, the complainant’s evidence (in cross-examination), that she did not consider that there was any relationship between the outcome of the civil proceeding and the criminal charges against the applicant, was contradicted by the letter sent by the solicitors for the complainant to the Registry of the Supreme Court, that the police investigation of the criminal charges against the applicant was part of her case in the civil proceeding.

It could not be expected that, in a case such as this, a complainant would remain entirely objective or independent of the issues that arose in the trial. However, the existence of the dispute relating to her mother’s will, and the circumstances in which that dispute had proceeded, were calculated to affect the approach and attitude of the complainant to the processes that were involved in the criminal proceeding against the applicant. They provide an explanation why the complainant sought to pursue the allegations against the applicant with a degree of vigour that is unusual in such proceedings, even taking into account the emotional factors that must necessarily affect people who have been, or who claim to have been, the victims of sexual abuse. From the perspective with which this Court is concerned, the jury was, in our view, obliged to take into account the existence and nature of the dispute relating to the complainant’s mother’s will, as a matter that affected its assessment of the reliability and credibility of the complainant in her evidence before it.

In this context, it is relevant that, in her first statement to the police, the complainant stated that after her solicitors had made the proposal to the applicant’s solicitors to settle the civil proceeding on the basis that she not pursue any claim for damages for sexual abuse, she ‘… did not hear anything further from him (the applicant) until December 2011’. Expressed in that way, the complainant’s statement, it would seem, suggested that the threat of legal proceedings by the complainant was sufficient to deter the applicant from proceeding with his claim in respect of his mother’s estate. That was plainly incorrect, as the applicant’s solicitors immediately responded by rejecting the proposal made on behalf of the complainant. In cross-examination, the complainant suggested that she did not remember that response, and that she ‘… just thought he disappeared for a year and a half’. That response was, in our view, inherently improbable. It is most unlikely that, in the circumstances of the case, the complainant’s solicitors might not have conveyed to her the peremptory response by the applicant’s solicitors to the offer made on her behalf. That is particularly so in circumstances in which the applicant’s solicitors had offered to accept service of the proceedings that the complainant had threatened to issue against the applicant seeking damages for sexual abuse.

Finally, as part of its assessment of the evidence, the jury was required to consider, as exculpatory evidence, the evidence of the father of the complainant and the applicant that he had not detected anything untoward in the relationship between them, and, secondly, the applicant’s denials, in his record of interview, that he had in any way sexually abused the complainant.

Taken together, the matters that we have discussed raise significant, and most substantial, issues as to the credibility and reliability of important aspects of the evidence of the complainant against the applicant. In our view, standing alone, those issues would readily compel the conclusion, by this Court, that the complainant’s evidence was so riddled with inconsistencies, and contradictions, that a reasonable jury could not have been satisfied beyond reasonable doubt of the allegations that she made against the applicant.

As we have noted, the complainant’s evidence did receive some support from the evidence of K and J as to the complaints made by the complainant to them that were contemporaneous with the events described by the complainant in her evidence. However, as we have also noted, there were serious contradictions between the substance of the complaints made by the complainant to those two friends, and the account given by the complainant in her statement to the police and in evidence, which in our view could not be properly explained by the passage of time and by faulty recollections on behalf of K and J. Both of those witnesses, in their evidence, recounted complaints made to them by the complainant that were significantly at odds with the version subsequently given by the complainant to the police and in her evidence. Those differences, of themselves, affected the weight to be given to the complaint evidence.

The resolution of this application for leave to appeal is by no means simple. We are fully conscious of the very real advantage of the jury, in seeing and hearing each of the witnesses, which is an advantage that must not be underestimated by this Court. Further, we are fully conscious that the law entrusts to the jury, and not to judges of appeal, the issues of fact in a criminal trial, and the determination of the guilt or otherwise of an accused person.[17] However, those considerations do not absolve this Court from determining whether, notwithstanding those considerations, the verdicts against the applicant were unreasonable and not supported by the evidence.
[17]R v Baden-Clay [2016] HCA 35, [65]; 90 ALJR 101–3, 1023–4 [65].

Ultimately, it is for this Court to consider, on all the evidence, whether it is satisfied that it was open to the jury to convict the applicant, giving full weight to the constitutional position of the jury as the sole arbiter of the facts, and the important advantages of the jury in carrying out that role. Having given the evidence careful and detailed consideration, we have come to the conclusion that, ultimately, the jury, acting reasonably, must have had a reasonable doubt about the credibility and reliability of the complainant in her evidence relating to the offences which were the subject of the charges on which the applicant was convicted.

In summary, based on our foregoing analysis of the evidence, we have reached that conclusion for the following reasons taken in combination:

·While the evidence given by the complainant as to the offending she alleged against the applicant was, by and large, coherent and consistent, nevertheless a number of issues were raised relating to the truthfulness and reliability of that evidence, particularly relating to the evidence of the complainant in respect of the offences that were the subject of charges 15, 17 and 18.
·While the evidence of the complainant was supported by the complaint evidence, and in particular the contemporary complaints she made to two school friends, nevertheless there were significant issues relating to those complaints that affected the credibility of the complainant, and of the substance of the complaints.
·The conflict in evidence between N and the complainant, relating to the encounter between them shortly before N’s 15^th birthday, had the effect of seriously undermining the credibility of the complainant as a witness of truth in the proceeding. We have set out, in some detail, our reasons for that conclusion. Put shortly, it was not open to the jury to reject the evidence of N, which was in sharp conflict to the evidence of the complainant. The complainant proffered three conflicting versions of the incident. She sought to induce N to adopt one version that, on her own account, was false.
·Most importantly, the complainant’s evidence was that after she had had sex with the applicant in circumstances in which the applicant’s condom had broken, the applicant happened to invent a ‘cover story’ about the complainant having sex with N that, by an extraordinary coincidence, was true. As the complainant accepted, it is most unlikely that the complainant would have told the applicant about her encounter with N, if in fact the applicant was then regularly sexually assaulting her. Yet the jury must have concluded that the applicant knew of that encounter, and that he learnt of it from the complainant.
·The complainant altered her own evidence about the complaint that she had made to one of her school friends, in order to make it ‘fit’ the account given by a second school friend that the latter was not present at that time.
·The circumstances in which the applicant contacted both K and N, and sought to persuade them (in the case of K) to give evidence, or (in the case of N) to alter his evidence, reflected adversely on the credibility of the complainant in relation to the issues that were the subject of the trial.
·Similarly, the approaches made by the applicant (and her husband) to the police, and some of the allegations made by the applicant to the police, reflected a determination by her that the applicant be prosecuted and convicted ‘come what may’.
·On analysis, there were material unresolved inconsistences between the evidence of the complainant and the evidence of all other witnesses who gave oral evidence or whose statement was read to the jury.
·Finally, the existence of the dispute relating to the provisions of the will of the mother of the applicant and the complainant, and the circumstances in which that dispute had proceeded in the Supreme Court, raised a real issue about the motive and approach of the complainant in pursuing the criminal charges against the applicant.

Taking those matters collectively, in our view the jury, acting reasonably, must have entertained a reasonable doubt about the reliability and credibility of the complainant as a witness of truth in the allegations that she made against the applicant that were the subject of the charges on which the applicant was convicted. It is important to bear in mind that the question for this Court is not whether the complainant was a witness of truth and reliability. Rather, the question is whether it was open to the jury to be satisfied, beyond reasonable doubt, to that effect. For the reasons that we have set out above, we have concluded that it was not open to the jury to reach that conclusion. For that reason the verdicts of the jury were unreasonable and cannot be supported having regard to the evidence.

Accordingly, the application for leave to appeal against conviction must be granted, and the appeal allowed.

[2016] VSCA 296

28 November 2016