Norman Porter (a pseudonym)[1] v The Queen
[2022] VSCA 177
•25 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0178 |
| NORMAN PORTER (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and some witnesses.
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| JUDGES: | KYROU, T FORREST and SIFRIS JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 July 2022 |
| DATE OF JUDGMENT: | 25 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 177 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1667 (Judge Gaynor) (Sentence) |
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CRIMINAL LAW – Appeal – Conviction – One charge of carnal knowledge of girl under 10, one charge of incest – Whether verdicts unreasonable or could not be supported by the evidence – Leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Whether substantial miscarriage of justice occurred due to adduction of evidence of applicant’s violence and admissions – Whether substantial miscarriage of justice occurred due to exclusion of evidence concerning dimensions of bedroom in which offending allegedly occurred and evidence of applicant’s sister – Whether judge’s refusal to allow a view of bedroom resulted in substantial miscarriage of justice – Leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Whether substantial miscarriage of justice occurred due to judge’s interventions during trial and comments made in course of trial and charge – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Six years’ imprisonment for one charge of carnal knowledge of girl under 10 (charge 1) – Six years’ imprisonment for one charge of incest (charge 4) – Cumulation of 2 years for sentence for charge 1 – Total effective sentence 8 years’ imprisonment with non-parole period of 6 years – Whether judge erred in characterisation of charge in respect of which applicant was acquitted – Whether sentence manifestly excessive – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr JR Sutton | ||
| Respondent: | Ms E Ruddle QC with Mr G Buchhorn | ||
Solicitors | |||
| Applicant: | Borchard & Moore | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TABLE OF CONTENTS
Introduction and summary
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
Overview of the prosecution case at trial
Ground 1: Are verdicts for charges 1, 4 unreasonable or unsupported by evidence?
Principles relating to ground 1
Evidence relevant to charges 1 and 4
Applicant’s submissions on ground 1 and the Court’s decision on that ground
Ground 2: Admission of evidence of violence, admissions and PTSD
The impugned evidence
Applicant’s submissions on ground 2 and the Court’s decision on that ground
Grounds 3 and 5: Exclusion of evidence and the judge’s refusal to allow a view
The evidence the subject of grounds 3 and 5
Ground 4: Exclusion of evidence of Ms Martin
Ground 6: Judge’s comments in the course of the trial and her charge
Legal principles relevant to ground 6
Impugned comments of judge
Parties’ submissions on ground 6 and the Court’s decision on that ground
Conclusion in relation to the application for leave to appeal against conviction
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
Applicant’s personal circumstances
Judge’s sentencing remarks
Ground 2: Judge’s characterisation of verdicts of not guilty for charge 3
Ground 1: Manifest excess
Conclusion in relation to the application for leave to appeal against sentence
KYROU JA
T FORREST JA
SIFRIS JA:
Introduction and summary
On 15 April 2021, a County Court jury found the applicant guilty of one charge of carnal knowledge of a girl under 10 years of age (charge 1) and one charge of incest (charge 4). In accordance with a direction from the judge, the jury found the applicant not guilty of a further charge of incest (charge 2). They also found him not guilty of a further charge of carnal knowledge (charge 3), which appeared on the indictment as an alternative to charge 2.
The complainant was the applicant’s stepdaughter. The offending the subject of charge 1 was alleged to have occurred between 1 August and 31 December 1980, when the complainant was 9 years of age (she was born on 1 August 1971) and the applicant was aged between 30 and 31 (he was born on 19 October 1949). The offending the subject of charge 4 was alleged to have occurred between 2 July 1982 and 31 December 1983 when the complainant was between 10 and 12 years of age and the applicant was aged between 32 and 34.
On 22 October 2021, a County Court judge sentenced the applicant as follows:[2]
[2]DPP v Porter (a pseudonym) [2021] VCC 1667 (‘Sentencing remarks’).
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Carnal knowledge of a girl under 10 years (Crimes Act 1958, s 46, since repealed) 20 years 6 years 2 years 4 Incest (Crimes Act, s 52(1), since repealed) 20 years 6 years Base Total Effective Sentence: 8 years’ imprisonment Non-Parole Period: 6 years Other Relevant Orders: Reporting for life under Sex Offenders Registration Act 2004
The applicant seeks leave to appeal his conviction on the following grounds:[3]
[3]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
[1]The verdicts of the jury on charges 1 and 4 were unreasonable or could not be supported by the evidence.
Particulars — Compounding improbabilities — Inconsistencies and improbabilities in the complainant’s accounts — improbability of the alleged physical location including the markings of that location by the complainant — the sequence of the allegations contained in Exhibit B — the omission of any complaint in the Family Law proceedings of 1987.
[2]A substantial miscarriage of justice occurred in the trial as a result of the admission of evidence where the probative value of the evidence was outweighed by the danger of unfair prejudice.
Particulars — admission of evidence concerning violence — admission of parts of the Record of Interview — admission of so-called admission evidence.
[3]A substantial miscarriage of justice occurred in the trial as a result of the exclusion of relevant evidence.
Particulars — exclusion of evidence regarding heights and measurements.
[4]A substantial miscarriage of justice occurred in the trial in that no evidence from [Stephanie Martin[4]] was put or allowed to be put before the jury.
[5]A substantial miscarriage of justice occurred in the trial in that the trial Judge refused to allow a view by the jury of the Noble Park home and bedroom where the events relating to Charges 1, 2 and 3 were alleged to have occurred.
[6]A substantial miscarriage of justice occurred in the trial by the trial judge making comments in the course of the trial and her charge about the defence and prosecution case or the evidence in circumstances when those comments had not been made by the prosecutor himself.
[4]Stephanie Martin is a pseudonym. Ms Martin is the applicant’s sister.
The applicant also seeks leave to appeal against his sentence on the following grounds:[5]
[1]The sentence was in all the circumstances manifestly excessive.
[2]The trial judge erred in her characterisation of the jury verdict of not guilty in relation to charge 3.
[5]The applicant abandoned a third ground of appeal against sentence.
For the reasons that follow, the applications for leave to appeal against conviction and sentence will be refused.
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
At the time of the alleged offending, for a charge of carnal knowledge, the prosecution had to prove beyond reasonable doubt that a complainant was less than 10 years of age at the time of the offending, whereas for a charge of incest it had to prove beyond reasonable doubt that a complainant was then aged 10 years or more.
The prosecution witnesses at trial were the complainant; her half-sister, Trina Tate;[6] their mother, Louise Rois;[7] and the informant, Detective Senior Constable Rhonda Ebbott. The prosecution tendered three exhibits, including the applicant’s record of interview.
[6]Trina Tate is a pseudonym.
[7]Louise Rois is a pseudonym.
The sole defence witness at trial was the applicant’s current partner, Myra Mills.[8] The defence tendered 45 exhibits, including a plan showing the dimensions of the family’s house in Noble Park where the offending the subject of charge 1 was alleged to have occurred.
[8]Myra Mills is a pseudonym.
Overview of the prosecution case at trial
The applicant was born in a European country and migrated to Australia in 1970 when he was 20 or 21 years of age.
In late 1974, when the complainant was 3 years of age, she and Ms Rois began living with the applicant. The applicant and Ms Rois married on 19 March 1977 and their child, Trina, was born on 4 November 1977.
In 1980, the family lived in the Noble Park house. Trina commenced day care in 1980 at 2 years of age. The complainant was then a Year 3 student and had her 9th birthday on 1 August 1980. In the early 1980s, the complainant attended European dancing classes in Keysborough once a week. On some occasions, the applicant’s sister, Ms Martin, drove the complainant to and from the dancing classes. From around 2 July 1982, the applicant drove a yellow Sigma car.
During the time that the family lived in the Noble Park house in the 1980s, Ms Rois worked full-time for a telecommunications company in Dandenong. Her standard finishing time was 4:36 pm. The applicant worked as a process worker in the automotive parts industry. His standard finishing time was 3:30 pm. He continued in the same role into the 1990s.
The prosecution case in relation to charge 1 (carnal knowledge) was that, on a particular day between 1 August and 31 December 1980, when the complainant and Trina were home with the applicant and Ms Rois was at work, the applicant inserted his penis into the complainant’s vagina while they were on the floor of the main bedroom. The prosecution case in relation to charge 4 (incest) was that, on a particular day between 2 July 1982 and 31 December 1983, while the applicant was driving the complainant in connection with her dancing class, he pulled over to the side of the road, told her to get into the back seat and, when they were both there, he inserted his penis into her vagina. The evidence relating to charges 1 and 4 is discussed in detail below under ground 1.
Charges 2 and 3 were alternative charges of incest and carnal knowledge. The complainant gave evidence that the applicant had penile-vaginal intercourse with her in the main bedroom of the Noble Park house after telling her that he would buy her a mint-coloured miniskirt that she had said she wanted. She said that the miniskirt was purchased from Target later that day in the course of the applicant driving her and Trina to pick up Ms Rois from work. The complainant’s evidence was unclear with regard to her age on that day. At one stage, she said that the miniskirt was purchased before she was 9, at another she said that she was then aged 9 or 10. A photograph of her wearing the miniskirt was tendered during the trial and was identified as having been taken when she was about 12. As we have already stated, the applicant was found not guilty of charges 2 and 3.
At some time in the school holidays in December 1980 or January 1981, the complainant injured her left foot in an accident involving a horse and sulky at her maternal grandparents’ farm. She was in hospital for several weeks, during which time she kept an autograph book. She was discharged around February 1981 and her foot remained bandaged for some time after that.
The complainant left the Noble Park house to live with her best friend’s family when she was about 14 years of age. She left school during Year 8.
In 1987, before the complainant’s 16th birthday on 1 August 1987, she met Ms Rois at a shopping centre and told her that the applicant had sexually abused her between the ages of 9 and 12. She did not provide details of the nature of the sexual abuse.
The complainant did not contact the police in 1987. Ms Rois contacted the police in 1987 or early 1988 and was told that the complainant would need to make the complaint because she was then 16.
Ms Rois and Trina left the Noble Park house in October 1987.
In 1987, Ms Rois told Trina that the applicant had molested the complainant. In later years, the complainant also told Trina that the applicant had sexually abused her but she did not mention any of the details.
Ms Rois confronted the applicant about the sexual abuse of the complainant on the day the complainant told her about it. Trina confronted him in 2007 when they met at a park and in 2015 by telephone. Ms Rois and Trina asserted that the applicant made admissions to them. The evidence relating to the alleged admissions is discussed in detail under ground 2.
Trina maintained contact with the applicant until she was between 25 and 27. She resumed contact with him in 2007 when she was 30 after he sought to re-establish a relationship. She invited him to her wedding on 23 November 2013, which the complainant and Ms Rois also attended. Trina again ceased contact with him in 2015.
The applicant met his current partner, Ms Mills, in 1990. They subsequently lived for a time in the Noble Park house.
The complainant reported the offending to police on 28 February 2017. The informant, Detective Senior Constable Ebbott, prepared a statement for her to sign on 16 March 2017.
The applicant was arrested on 1 September 2017 and participated in a record of interview on the same day. He denied sexually abusing the complainant. Parts of the record of interview are discussed below under ground 2.
Ground 1: Are verdicts for charges 1, 4 unreasonable or unsupported by evidence?
Principles relating to ground 1
Ground 1 relies upon s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), which provides that the Court of Appeal ‘must allow [an] appeal against conviction if the appellant satisfies the court that … the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
Section 276(1)(a) of the CPA requires this Court to ask itself whether we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt upon the whole of the evidence that the applicant was guilty of charges 1 and 4.[9] In M v The Queen, the majority observed:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the 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.[10]
[9]M v The Queen (1994) 181 CLR 487, 493, 494–5 (‘M’).
[10](1994) 181 CLR 487, 494–5 (citations omitted).
In Pell v The Queen, the High Court endorsed the approach in M, and said:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[11]
[11](2020) 268 CLR 123, 145 [39] (citations omitted) (‘Pell’).
Applying that approach to the appeal in that case, the High Court stated:
Upon the assumption that the jury assessed [the complainant’s] evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence summarised … above nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.[12]
[12]Pell (2020) 268 CLR 123, 164–5 [119].
In the present case, the applicant relied upon the above statements of principle in Pell in relation to both charges 1 and 4. He contended that, based upon inconsistencies, discrepancies and other inadequacies in the complainant’s evidence and evidence from other sources, there were ‘compounding improbabilities’ in the prosecution case such that the jury, acting rationally, ought to have entertained a reasonable doubt as to his guilt.
Evidence relevant to charges 1 and 4
Defence counsel at trial tendered the statement dated 16 March 2017 that the complainant made to police. In that statement, she described the offending the subject of charge 1 as follows:
When I was 9 years old and in Grade 4, [the applicant] put a VHS tape on for my sister, who was 4 at the time. At the time I didn’t think anything. My sister was in front of the tv and I was on the couch. [The applicant] was behind my sister and he looked at me and gestured for me with his finger to come here.
I followed him into his and my mum’s bedroom. He opened the door and then closed it. He said, ‘Now I’m not going to hurt you but just do as I tell you to do’. He got a towel, I think it was a white towel, from the bed, he laid it on the floor. He asked me to remove my knickers and at that time I started crying.
I was crying because he was going to see my vagina. We never talked openly about any of this stuff. I was overweight and I had body issues. I remember not wanting him to see my body. I remember trying to cover myself with my hands, so he wouldn’t see my vagina.
He laid me on the floor on my back, with my bum on the towel. My head was against the door. He pulled his pants down, knelt on the floor, he pulled my legs up, my knees were bent and pushed my legs apart at my knees. He then inserted his penis in my vagina. I remember it being warm but I don’t remember him hurting me.
The whole time I cried and he kept telling me to keep it down, ‘Stop it’. I can’t remember how long it went for, I don’t think it was very long. He gently moved in and out of me. When he stopped he warned me that if I was to ever tell anybody he would kill mum and I. He said, ‘If you ever tell anybody I will kill your mum and you’. I was frightened because he had physically abused mum many times before this even begun. He was very violent, we were all petrified of him. I remember him using a stick that mum used for the washing machine to whack me on the back and legs.
I can’t remember specifically the next time it happened but it wasn’t long after the first time. He did the same thing to me, in the same way, I think it was either weekly or fortnightly for the whole year that I was in Grade 4.
In the statement, the complainant then said that, around this time, she would bring Trina home from school and that they would be home on their own for about 20 minutes before the applicant came home from work. She then described the offending the subject of charge 4 as follows:
When I was 10 years old my aunty, [Ms Martin], would take me and my cousins to European dancing in [redacted] Road, Keysborough after school. She would pick me up from home and take me home again after. One time [the applicant] took me dancing, I can’t remember the reasons why but I know my cousins weren’t there. I remember going there in daylight and leaving when it was dark. He drove me, waited for me to finish and then drove me home. It was in his car, a yellow Sigma. I had my dancing clothes on it was basically white with a red waist band around the middle, it was like bed sheets. The shoes were like, hard with a pointy thing at the top, they were white and tight and uncomfortable. As soon as I got in the car I took the shoes off.
Back then [redacted] Road was vacant land, very rarely would you see cars coming and going. We pulled in, off the road, I remember a gate and not seeing any lights anywhere, it was dark. When [the applicant] pulled over I knew straight away that he was going to sexually abuse me.
He told me to get in the back seat and lay down. I was in the back seat and I remember my head being right up against the car door, my legs were bent up like the first time. He got out of the car and got in on the passenger side of the back. He left the back door open and I can remember a draft, breeze coming through and coming under my legs and feet. My head was on the driver’s side of the car. He knelt on the back seat and inserted his penis.
I remember feeling the seat belt thing that you insert the seatbelt into on my side/hip, it was digging in to me. I remember it being uncomfortable and squashy. I remember feeling frightened if anybody came past. I felt like I was a dirty little girl because sex was a dirty word to me. This came from mum, if I saw even kissing on telly I would turn my head. I knew that what [the applicant] was doing to me was sex and I felt dirty, disgusting, like I was the only person in the world that was being sexually abused. I felt nervous, frightened that someone was going to see me and the way I was in that position, see me nude or see my vagina.
In the paragraph of the complainant’s statement to police dated 16 March 2017 immediately following the final paragraph quoted above, she set out details of the sulky accident. She stated that the accident occurred ‘[a]fter [the applicant] started sexually abusing [her]’. She said that she was in hospital for about three months.
At trial, the complainant gave the following evidence in chief in support of charge 1. One day after school when she was 9 years old, the applicant put a video on for Trina. He then gestured behind Trina for the complainant to ‘come here’ and she followed him into the bedroom he shared with Ms Rois. He drew the block-out blinds closed, put a towel under her bottom and removed her underwear. She felt violated and embarrassed, and tried to cover her vagina. He laid her down on the floor so that her head was against the bedroom door, bent her knees up and slightly apart and inserted his penis into her vagina. She cried and he told her to ‘keep it down’. After he finished, he told her not to tell anyone and that, if she did, he would kill her and Ms Rois. She took the threat seriously because he used to belt her on the back of the legs with a wooden stick used for the washing machine and was extremely violent towards Ms Rois. She remembered that the sexual abuse commenced prior to the sulky accident because she was relieved that she did not have to go home while she was in hospital. She started an autograph book around that time. A nurse who signed the book towards the end of the complainant’s hospital stay recorded the date of her entry as 23 February 1981. The sexual abuse recommenced on a frequent basis after the complainant returned to school. It did not occur again after she got her period when she was 12.
The complainant gave the following evidence in chief in support of charge 4. She started European dancing classes in Keysborough when she was 9. She stopped after the sulky accident and resumed after her recovery, when she was 10 or 11, but not ‘for too long’. It was daylight when the classes started and dark when they finished. Ms Martin used to pick her up from home to drive her to the classes. On one occasion, the applicant drove her to the dancing class in his Sigma. On the way home, when it was dark, he pulled over on the side of the road. He asked her to get in the back of the car. When they were both there, she lifted her legs up and he inserted his penis into her vagina. A seatbelt buckle was digging into the side of her ribs. There was no lighting in the area and no one went past while they were pulled over. In re‑examination, she said that her recovery from the sulky accident took a few months and involved her learning to walk again.
The complainant was cross-examined for the equivalent of four days before the jury and briefly at two separate voir dires.[13] The inappropriate nature of some aspects of the cross-examination is discussed under ground 6. The complainant’s evidence during cross‑examination relevantly included the following:
[13]Due to the COVID-19 pandemic, most hearings in this case commenced at 12:30 pm daily and continued until 4:30 pm with regular breaks but without a customary luncheon adjournment. On three of the six days over which the complainant was cross-examined, the duration of the cross-examination was limited for various reasons.
(a)Her statement to police dated 16 March 2017 was mostly correct, apart from her ages. In that statement, she said that she was 9 years old and in Grade 4 at the time of the first incident. At the time of making the statement, she understood that she needed to try to put things in chronological order. However, soon after making the statement, she discovered that, whilst she had correctly recalled her age, she was in fact in Grade 3 at the time of the first incident. She discovered this because she reviewed an autograph book she started while in hospital following the sulky accident, by which time the first incident had already occurred. In response to repeated questioning, the complainant said that she was not sure if the discovery was made by her or the informant. The complainant’s statement to police dated 16 March 2017 also incorrectly stated that she brought Trina home from school around the time of the offending the subject of charge 1. At the time, Trina went to day care and the complainant assumed the applicant brought Trina home. She brought Trina home from school when she was in Grade 6. She further corrected her statement by saying that Ms Martin began taking her to dancing classes when she was 9, although the Sigma incident occurred after she had recovered from the sulky accident, when she was 10.
(b)The complainant made a second statement to police on 20 March 2018. Annexed to that statement was a plan of a house with the same dimensions as the Noble Park house, save that the main bedroom on the plan was on the left of the front door and the lounge room was on the right whereas the main bedroom of the Noble Park house was on the right of the front door and the lounge room was on the left. At the time of making her second statement, the complainant placed an X on the plan near the door in the main bedroom and added an arrow with the notation ‘mum + dad’s bedroom’, to indicate where the sexual offending in that house occurred. That plan shows the dimensions of the main bedroom as being 13 feet, 6 inches by 10 feet, 4 inches. Defence counsel tendered that plan as Exhibit C. When looking at the house plan during cross‑examination, the complainant realised that it was back to front.
(c)Defence counsel showed her a photograph of part of the bedroom taken after the period of the alleged offending (Exhibit O). She agreed that the photograph accurately reflected the size of that part of the room and the location of the bed, door and window. She stated that, when the door was closed, there was about a 1.5 metre walkthrough between the door and the bed, which was enough room for the offending to take place. Defence counsel put it to her that there was not enough room for her or the applicant to fit if they lay ‘horizontally from the foot of the bed to the door’. She clarified that she had ‘[her] head against the door, facing towards the bedhead’. She said that she did not know if defence counsel had the position right.
(d)The applicant had never gestured to her to ‘come here’ prior to the first incident. During the bedroom incidents, he always used the gesture to get her to go into the bedroom; he did not drag her or use words.
(e)She never saw the applicant’s penis during any of the incidents. The block-out curtains were always closed going into the room during the bedroom incidents, making the room dark and ‘pitch black’, and the complainant closed her eyes ‘a lot of the times’.
(f)The applicant would have had to hurry during the first incident in case Trina came into the bedroom. The incident occurred before the complainant, the applicant and Trina left to pick up Ms Rois from work.
(g)She started European dancing at the age of 9 when she was in Year 3. She did not dance for ‘a long period of time’. She stopped dancing after the sulky accident, possibly for months. She may have danced for a short period after she recovered from the accident, but it was not ‘over years’. She ‘definitely’ was not dancing when she was 11. She participated in two to three performances at the most. She agreed with defence counsel that she ceased dancing in the first half of 1981. When defence counsel then asked her whether she ceased dancing altogether fairly shortly after the accident, she replied that she did not know the timeframe, but she may have ceased a year at most or maybe a little bit more after the accident. The Sigma incident occurred after she had recovered from the sulky accident, when she was 10.
(h)She could not say how long the applicant had the Sigma prior to the incident in that car. She could not recall if it had a ‘new car smell’ during the incident.
(i)There were no witnesses to any of the incidents, although Trina was present in the house or its general vicinity during the offending in the house.
(j)Between the age of 9 and when she ran away from home, she did not confide in her mother about the applicant’s offending because the complainant feared that he would kill both of them. She was petrified of him and believed his threat because he abused her mother and was also violent towards her. Although the applicant never seriously injured her, he used to belt her on the back of her legs with a wooden stick. There were times when she tried to intervene when the applicant was physically abusing Ms Rois and he would be violent towards the complainant: he would get her up by her nightie, put her against a wall, say ‘Fuck up’ and drop her down.
(k)Between the age of 9 and when she ran away from home, she once confided in the applicant’s two brothers about the applicant abusing her mother. She used to telephone either brother to come over and help.
(l)After her first disclosure to Ms Rois in 1987 that the applicant had sexually abused her between the ages of 9 and 12,[14] she mentioned the abuse again from time to time, including when she was with both Ms Rois and Trina.
[14]See [18] above.
During cross-examination, the complainant described the first incident consistently with the account she gave during examination in chief, except for saying that the room was already dark when she entered the bedroom.
Ms Rois gave the following evidence in chief. In 1980, Trina started attending day care and the applicant worked day shifts. The applicant finished work and the complainant finished school at 3:30 pm. The complainant walked home from school by herself, which would take five minutes, and would be home alone until the applicant returned from work. Ms Rois ordinarily finished work at 4:36 pm, although she worked ‘flexi time’ and would work overtime around once a week. The applicant would normally pick her up from work because she did not drive. Depending upon what time she finished, there were times when both children were in the car and there were other times when she picked up Trina from kinder. Both children were in the car when she worked overtime. The complainant was 9 or 10 when she started dancing classes. She attended the classes both before and after the sulky accident. Ms Rois did not remember that the complainant did the dancing for ‘a really long time’. Ms Martin would normally take the complainant to the classes. On occasions when Ms Martin was not able to do so, the applicant would take her.
Ms Rois gave the following further evidence in chief. In 1987, when the complainant was 15, she telephoned Ms Rois to arrange a meeting at a shopping centre. When they met, the complainant told her that the applicant had been sexually molesting her. Ms Rois was shocked and they both cried. When Ms Rois got home, the first thing she said to the applicant was, ‘You’ve been sexually abusing [the complainant].’ He denied it a couple of times before eventually admitting it and saying, ‘Oh, you’d be happy that you’ve got something on me now’. She told Trina about the abuse within a few days of the complainant’s disclosure. She continued to live with the applicant for three or four months until she ‘escaped’ with Trina. The complainant did not provide any particulars of the nature of the sexual abuse when she first disclosed it to Ms Rois. The complainant provided the details over a few years as she could not talk about it.
During cross-examination, Ms Rois gave the following evidence. When she finished work at 4:36 pm, the applicant would pick her up from work and they would both pick up Trina from day care. When she worked later, the applicant would pick up Trina from day care, take her home and then bring her to pick up Ms Rois from work. The day care centre was open from about 7 am until 6 pm. She estimated that the drive home from her work was around 15 or 20 minutes. For a period of not more than a year when Trina’s cousin attended day care with her, Trina’s paternal grandparents picked her up from day care and took her to their house in Springvale. Ms Rois was not sure whether that was during 1980, 1981 or 1982. In re-examination, Ms Rois stated that she thought that the applicant picked up Trina from her grandparents’ house after they picked her up from day care.
During cross-examination, defence counsel asked Ms Rois if the distance between the foot of the bed in the main bedroom of the Noble Park house and the door was less than 4 feet. She said that she was not good with measurements and that there was ‘a fair bit of room to walk through’ to get onto the bed. When pressed by counsel, she said that the distance was ‘[p]ossibly’ less than 4 feet and repeated that she was ‘not good’. Ms Rois said that the bed was queen sized.
During cross-examination, Ms Rois said that, a couple of days after the complainant told her about the sexual abuse, she spoke to a solicitor through a free legal advice service provided by her employer. She stated that she later saw another solicitor, but she did not seek advice from that solicitor about reporting the applicant’s offending against the complainant to the police because her purpose for going to that solicitor was to obtain a restraining order against the applicant, custody of Trina and maintenance.
The defence tendered Exhibits D1 and E1. Exhibit D1 is a court document which shows that Ms Rois commenced a proceeding under the Family Law Act 1975 (Cth) on 2 November 1987 seeking orders for custody and maintenance, and restraining orders for her protection. Exhibit E1 is an affidavit sworn by Ms Rois on 29 October 1987 in which she stated that the applicant had been violent towards her on several occasions but did not mention that the applicant had physically or sexually abused the complainant.
In cross-examination, Ms Rois stated that she complained about the applicant’s violence towards herself in her affidavit, but did not see the point in including an allegation that the applicant abused the complainant, because the restraining order was to keep him away from herself so that he could not ‘bash [her] up or worse’. She said that she attempted to report the sexual abuse to police in 1987 or early 1988 but was told that the complainant would need to make the complaint because she was then 16.
In cross-examination, Ms Rois stated that, before the complainant reported the applicant to police, she had had many discussions with the complainant and Trina about how they felt in relation to the offending and how it had affected the complainant and Trina. Ms Rois denied that they collectively decided to proceed with the complaint against the applicant and said that it was the complainant’s decision to go to the police.
During cross-examination, Trina gave evidence that she went to day care when she was aged 3 and 4. She said that there was a period of time when her cousin (Ms Martin’s son) attended day care with her and their grandparents would pick them up. In re‑examination, she said that she was not sure if her grandparents picked her up the whole time she attended day care.
During cross-examination, Trina confirmed that, in her statement to police dated 18 July 2017, she said that Ms Rois informed her earlier that year that the applicant used to put her in front of a cartoon to distract her while he took the complainant into the bedroom to rape her and that he used the complainant’s head ‘as a doorstop’ so that Trina would not be able to get in the room.
During examination in chief, the informant, Detective Senior Constable Ebbott, stated that she first spoke with the complainant by telephone on 28 February 2017, when they had a brief conversation about the complainant’s allegations. She said that she took the complainant’s statement dated 16 March 2017.
The informant gave the following evidence during cross‑examination. Her notebook records that the complainant told her in their first conversation that: ‘He didn’t penetrate — insert me with penis. Not all the way in’; the applicant had dragged her into the bedroom; the offending occurred when she was between 10 and 12 years old; and the Sigma incident occurred ‘on the way’. The informant and the complainant subsequently tried their best to ensure that the complainant’s statement dated 16 March 2017 was in chronological order. Defence counsel did not ask the informant whether ‘on the way’ meant on the way to or from the dancing class. In re‑examination, the informant stated that her notebook does not record, and she did not recall, whether the complainant meant that the Sigma incident occurred on the way to or from the dancing class.
Ms Mills, the applicant’s current partner, gave the following evidence in chief for the defence. When she lived with the applicant in the Noble Park house, she shared a queen‑sized bed with him in the same room that he had shared with Ms Rois (being the bed shown in Exhibit O), although it was a different bed. When the door was opened so it was at right angles with the wall, the distance between the edge of the door and the end of the bed was ‘a fraction bigger’ than the length of an A4 piece of paper. She had measured the length of the mattress on her queen-sized bed as being 6 feet, 8 inches. She had also measured the distance between the top of the applicant’s head and his feet when he was on all fours as being 4 feet, 10 inches. After resuming her evidence following a brief break, she said that she conducted further measurements and that her evidence now was that the applicable measurement was 4 feet, 6.5 inches. In re‑examination, Ms Mills stated that, when she lived with the applicant in the Noble Park house, he finished work at 3:30 pm and he used to get home a bit after 4 pm.
Defence counsel tendered Exhibit P, being a copy of the applicant’s application form for the registration of his Sigma dated 2 July 1982. The application form indicates that the car was manufactured in June 1982.
Applicant’s submissions on ground 1 and the Court’s decision on that ground
The applicant submitted that the present case was similar to Pell, in that there were compounding improbabilities in the prosecution case that required the jury, acting rationally, to have a reasonable doubt as to his guilt. The applicant relied upon a ‘schedule of compounding improbabilities’ which listed 11 matters that were said to collectively raise reasonable possibilities that the complainant’s account of the offending was incorrect and thus created a reasonable doubt as to his guilt. The schedule described the 11 matters in the following terms:
1The complainant’s account places her sister [Trina] nearby in all of her allegations with the exception of the Sigma incident. The evidence of others is that [Trina] could not have been present in the years 1980 to 1982.
2The placement of the complainant’s head against the door of the bedroom to prevent [Trina] entering is impossible/improbable if [Trina] was not there.
3The alleged sexual misconduct in the bedroom could not physically have occurred as alleged as the space available between the door and the foot of the bed was insufficient for either the [applicant] and or the complainant to fit.
4When asked by the police to identify where the alleged incidents occurred at the home the complainant marked a location on the opposite side of the house corresponding to the living room and not the bedroom.
5It was improbable that there would be sufficient time for these alleged events to occur at the home when the [applicant] had a limited time to collect [Ms Rois] from work.
6The details of accounts of sexual misconduct made by the complainant have varied including a report of non-penetration and an account of being dragged into the bedroom and [an] account of the Sigma incident occurring on the way to dancing.
7[The complainant’s statement to police dated 16 March 2017] places all relevant alleged sexual offending before the sulky accident at the end of 1980 and when the complainant was 9 years of age.
8The Sigma was not delivered until on or after 2 July 1982 making it impossible/improbable that the allegations of sexual misconduct in the Sigma occurred if the complainant was definitely not dancing when she was 11.
9The complainant says at one point that she ceased dancing in the first half of 1981 making her 9 years of age and not of or above the age of 10 as required in charge 4.
10It is improbable that the complainant never saw the [applicant’s] penis given what she says in … paragraph 18 [of the complainant’s statement to police dated 16 March 2017].
11It is improbable that the complainant’s mother made no reference [to] any alleged sexual misconduct concerning the [applicant] in the Family Law Act proceeding documents — Exhibits D 1 & E 1
The applicant’s written case referred to a 12th matter, namely, ‘[t]here is ample evidence that the complainant’s evidence has been contaminated and affected by repeated conversations with others but most particularly [Ms Rois] and in later years [Trina].’
The applicant submitted that, in addition to the collective effect of the 12 matters, matters 1 and 3 individually were sufficient to create a reasonable doubt about the applicant’s guilt in relation to charge 1, and matters 7 and 9 individually were sufficient to create a reasonable doubt about his guilt in relation to charge 4.
For each of the 12 matters, we will first summarise the applicant’s submissions and then set out our conclusions in relation to them.
Matters 1 and 2: the presence of Trina at the time of the offending. The applicant relied upon the following evidence in relation to matters 1 and 2:
(a)The evidence of Ms Rois and Trina that Trina attended day care and that Trina’s paternal grandparents picked her up from day care.
(b)Ms Rois’s evidence that Trina’s paternal grandparents took her to their house in Springvale from day care and that the applicant picked up Trina from their house.
(c)Ms Rois’s evidence that her standard work day concluded at 4:36 pm, that her workplace was approximately 15 minutes from the Noble Park house by car and that the applicant picked her up from work because she did not drive.
(d)Ms Rois’s evidence that the complainant finished school at 3:30 pm and walked the five-minute journey home.
(e)The evidence of Ms Rois and Ms Mills that the applicant finished work at 3:30 pm, and Ms Mills’ evidence that he would normally arrive home a bit after 4 pm.
(f)Trina’s evidence that the applicant used the complainant’s head ‘as a doorstop’ so that Trina would not be able to get into the bedroom.
On the basis of the above evidence, the applicant contended that it was not physically possible for Trina to be home with him and the complainant between the time he arrived home from work and the time he departed to pick up Ms Rois from work. He argued that Trina’s presence was critical to the complainant’s account because the alleged placement of the complainant’s head against the door would not have occurred if Trina was not present. Accordingly, so it was said, the evidence created a reasonable possibility that the applicant did not sexually abuse the complainant at the Noble Park house in the years 1980 to 1982 after she arrived home from school.
In our opinion, there is no substance to matters 1 and 2. That is because, when the evidence as a whole is considered, it was open to the jury to conclude that Trina was home at the time of the offending the subject of charge 1 and on other occasions in 1980 to 1982.
Ms Rois gave evidence that, although her standard finishing time at her work was 4:36 pm, there were many occasions when she finished work later. She also stated that Trina’s paternal grandparents picked her up from day care and took her to their house for a period of not more than a year, but she was not sure whether that was during 1980, 1981 or 1982. She further stated that the day care centre was open until 6 pm and that, when Trina’s grandparents did not pick her up from there, she and the applicant did so if she finished work at 4:36 pm and that the applicant alone did so when she finished work later. Trina’s evidence was that she could not say whether her paternal grandparents picked her up from day care during the entirety of the period from 1980 to 1982. In a different context, Trina stated that her memories ‘are between probably four years old and 10’. It is therefore unlikely that Trina’s memory of being taken to her grandparents’ house after day care related to the period prior to her 4th birthday on 4 November 1981.
It is readily apparent that, when the evidence of Ms Rois and Trina is considered as a whole, it was open to the jury to conclude that Trina’s paternal grandparents did not drive her to their house after day care for the whole of the period from 1980 to 1982 and that there were many occasions in those years when the applicant was home alone with Trina and the complainant. It must also be borne in mind that the complainant did not specifically say that Trina was always home when the sexual abuse took place. Accordingly, even if Trina was absent on some occasions, it did not necessarily follow that the jury could not accept the complainant’s evidence that the applicant abused her in the main bedroom.
As we have concluded that it was open to the jury to accept the complainant’s account that Trina was home at the time of the offending in the main bedroom, it was also open to the jury to accept Trina’s evidence that the complainant’s head was positioned against the door ‘as a doorstop’ to prevent Trina from entering.
Matter 3: the space between the main bedroom door and the foot of the bed. The applicant relied upon the following evidence in relation to matter 3:
(a)The plan of the house (Exhibit C), which showed that the length of the main bedroom was 10 feet, 4 inches.
(b)The complainant’s evidence that, at the time of the offending in the main bedroom, her head was placed against the door and her feet were — to use the inaccurate description of counsel for the applicant — ‘against the end of the bed’.
(c)Ms Mills’ evidence that the mattress of the queen bed that she shared with the applicant was 6 feet, 8 inches in length, and that the distance between the bedroom door when opened at a right angle and the end of that bed was a fraction bigger than the length of an A4 piece of paper.
(d)Ms Mills’ evidence that the distance between the top of the applicant’s head and his feet when he was on all fours was 4 feet, 6.5 inches.
On the basis of the above evidence, the applicant contended that it was not physically possible for the applicant to penetrate the complainant’s vagina while they were on the floor of the bedroom between the door and the end of the bed, even if the complainant’s legs were bent. That was said to be so because the distance between the door and the end of the bed was 3 feet, 8 inches — calculated by deducting 6 feet, 8 inches from 10 feet, 4 inches — and the applicant’s length while on all fours was 4 feet, 6.5 inches. On this basis, so it was said, the evidence created a reasonable possibility that there was insufficient space for the offending to be committed in the manner alleged by the complainant. In oral submissions, counsel for the applicant conceded that, if the complainant had indicated in her evidence that she and the applicant were lying on an angle, the argument in support of matter 3 would be diminished or defeated.
In our opinion, matter 3 is not supported by the evidence for two key reasons. The first reason is that there was no direct evidence of the size of the queen bed the applicant shared with Ms Rois in the period 1980 to 1982 and the precise location of the bed relative to the door. Ms Mills’ evidence was about the dimensions of the bed she shared with the applicant in the 1990s and its position in the bedroom at the time. She acknowledged that it was not the same bed as the bed that the applicant shared with Ms Rois. The photograph that comprised Exhibit O could not support an inference that the two beds were exactly the same size and were placed in exactly the same location in the bedroom.
The second — and fatal — reason is that matter 3 is based upon the erroneous assumption that the complainant’s evidence was that she and the applicant were lying at right angles to the closed door — with her head against the door and her feet against the end of the bed — at the time of the offending. At no time did the complainant say that she and the applicant were lying in a straight line between the door and the end of the bed, at right angles to the door. The complainant’s evidence was that her head was against the door, ‘facing towards the bedhead’, and she challenged defence counsel’s proposition that she and the applicant were lying ‘horizontally from the foot of the bed to the door’. Consistent with the complainant’s evidence, it was open to the jury to find that the applicant and the complainant were not lying in a straight line between the door and the end of the bed, and that they were positioned at an angle which left sufficient room for the offending to take place.
We also note that the complainant and Ms Rois gave evidence that there was sufficient space between the bedroom door and the end of the bed for the offending the subject of charge 1 to take place. The complainant estimated that there were 1.5 metres to walk through when the door was closed and Ms Rois stated that there was a fair bit of room to walk through to get onto the bed.
Matter 4: the mark the complainant placed upon the plan that is Exhibit C. The evidence relating to the complainant placing a mark on the plan that is Exhibit C is summarised at [37(b)] above. The applicant contended that, because the complainant marked the plan without commenting that the layout of the house was reversed, Exhibit C created a reasonable possibility that the offending the subject of charge 1 could not have taken place in the location and in the manner alleged by the complainant. In our opinion, this contention is without merit. The fact that the complainant marked the room on the plan which corresponded to the lounge room of the Noble Park house did not undermine her evidence that the offending took place in the main bedroom of that house. That is because the room in which the complainant placed an X and drew an arrow with the notation ‘mum + dad’s bedroom’ was described as ‘bed 1’ on the plan and had the same dimensions as the main bedroom of the Noble Park house.
Matter 5: the time available to the applicant to commit the offending. The applicant relied upon the evidence summarised at [57] above in relation to matter 5. He submitted that the evidence created a reasonable possibility that the offending the subject of charge 1 could not have occurred because the complainant, Trina and the applicant could not have been present at the Noble Park house — when Ms Rois was absent — for long enough to enable the offending to take place. In our opinion, that evidence does not support the applicant’s submission. That is because Ms Rois gave evidence that she often finished work after her standard time of 4:36 pm and, at those times, both children were in the car when the applicant came to pick her up. On the basis of this evidence, it was open to the jury to conclude that there were ample occasions when the applicant was home with only the complainant and Trina before driving to Ms Rois’s workplace to pick her up.
Matter 6: the inconsistencies in the complainant’s account of the offending. The applicant submitted that inconsistencies in the complainant’s account of the offending created a reasonable possibility that the offending did not occur. In support of this submission, the applicant relied upon three differences in the complainant’s account as recorded in the informant’s notebook[15] and her account at trial. First, the notebook records that the complainant told the informant that ‘He didn’t penetrate — insert me with penis. Not all the way in’, whereas the complainant’s evidence at trial was that the applicant inserted his penis into her vagina. Secondly, the notebook records that the complainant told the informant that the applicant dragged her into the bedroom, whereas the complainant’s evidence at trial was that the applicant gestured to her to ‘come here’ and she then followed him into the main bedroom. Thirdly, the notebook records that, in connection with the dancing class, the complainant told the informant that the offending occurred ‘on the way’, whereas the complainant’s evidence at trial was that that incident occurred on the way from the dancing class.
[15]See [50] above.
In our opinion, matter 6 does not give rise to the reasonable possibility for which the applicant contends. That is because, to the extent that there were inconsistencies between the complainant’s evidence at trial and prior statements made by her, it was a matter for the jury to decide which account to accept in whole or in part. It was open to the jury to find that the offending occurred in the manner described by the complainant at trial. That is particularly so in relation to the first and third alleged inconsistencies in respect of which the jury could conclude that both accounts were reconcilable.
In relation to the first alleged inconsistency, it was open to the jury to conclude that both the informant’s notebook and the complainant’s evidence assert that the applicant penetrated her vagina with his penis to some extent. In relation to the third alleged inconsistency, it was open to the jury to conclude that the notation ‘on the way’ in the informant’s notebook was consistent with the complainant’s evidence that the offending took place on the way from the dancing class. That is because, in cross‑examination, defence counsel did not ask the informant whether ‘on the way’ meant on the way to or on the way from the dancing class and, in re‑examination, she said that her notebook does not record, and she could not recall, whether the complainant meant on the way to or on the way from the dancing class.
We accept that there is some substance to the second alleged inconsistency. However, although the informant’s notebook records the complainant using the word ‘dragged’ on 28 February 2017, she did not use that word in her statement to police dated 16 March 2017, which was made less than three weeks after she spoke to the informant. In that statement and in her evidence at trial, the complainant said that the applicant gestured with his finger for her to ‘come here’. In these circumstances, it was well open to the jury to find that the incident the subject of charge 1 occurred in the manner described by the complainant in her evidence.
Matter 7: the timing of the sulky accident. In support of matter 7, the applicant relied upon the fact that, in the complainant’s statement to police dated 16 March 2017, the reference to the sulky accident was made in a paragraph that followed the paragraphs describing all of the offending. He also relied upon the evidence of the complainant and the informant that they tried to set out events in the statement in chronological order. He submitted that the sequence of events set out in the police statement created a reasonable possibility that the offending the subject of charge 4 occurred when the complainant was 9 years of age and therefore the offence of incest could not be made out.[16]
[16]See [7] above.
In our opinion, the applicant’s submission in relation to matter 7 must be rejected. That is because the complainant gave evidence at trial that, after making the statement to police and consulting her autograph book, she realised that the sulky accident occurred in December 1980 or January 1981, prior to the date upon which the offending the subject of charge 4 took place. The complainant’s explanation as to why the relevant events did not take place chronologically in the same sequence as the police statement suggested was entirely plausible and the jury were entitled to accept it.
Matters 8 and 9: the timing of the applicant’s acquisition of the Sigma and the complainant ceasing to attend dancing classes. The applicant relied upon the following evidence in relation to matters 8 and 9:
(a)The registration form for the Sigma, which stated that the car was manufactured in June 1982 and an application for registration was made on 2 July 1982.[17]
(b)The complainant’s evidence that she could not say how long the applicant had used the Sigma prior to the incident in that car and could not recall if it had a ‘new car smell’ during the incident.
(c)The complainant’s evidence that: she started European dancing at the age of 9 when she was in Year 3; she stopped dancing a short time after the sulky accident; she ceased dancing in the first half of 1981; she was ‘definitely’ not dancing when she was 11; and she learnt European dancing for a year at most or maybe a little more.
[17]See [52] above.
The applicant submitted that the above evidence created a reasonable possibility that the offending the subject of charge 4 did not take place on or after the complainant’s 10th birthday on 1 August 1981, or at all. That was said to be because the effect of the complainant’s evidence was that she ceased dancing in the first half of 1981 a short period after the sulky accident, and this would have been before the complainant’s 10th birthday and well before the applicant purchased the Sigma on 2 July 1982.
In our opinion, the jury were not required to have a reasonable doubt about the commission of the offending the subject of charge 4 on the basis of matters 8 and 9. We note that, although the complainant said that she ceased dancing in the first half of 1981, she also stated that she stopped dancing after the sulky accident, possibly for months, and that she may have ceased dancing altogether a year at most or maybe a little bit more after the accident. In these circumstances, one way in which the complainant’s evidence about the timing of cessation of dancing classes could be understood was that she temporarily ceased dancing classes after the sulky accident, resumed after she recovered from the accident and permanently ceased before her 11th birthday on 1 August 1982. The period from 2 July 1982 until 1 August 1982 fell within the timing of the offending set out in the indictment for charge 4 and postdated the applicant’s acquisition of the Sigma.
Matter 10: the complainant’s evidence that she never saw the applicant’s penis. The applicant submitted that the complainant’s evidence that she never saw his penis at any time during the offending was so implausible as to create a reasonable possibility that the offending did not take place. He contended that it was implausible that the complainant would not have seen the applicant’s penis if the offending had occurred in the manner she described in her statement to police dated 16 March 2017, including her fear about her vagina being visible in the Sigma. He argued that, if her vagina was visible, she would have had an opportunity to see his penis.
In our opinion, matter 10 is devoid of merit. It is entirely plausible that a young girl who is being sexually abused would avoid looking at the offender’s penis. In this regard, in relation to the offending in the main bedroom, the complainant gave evidence that the room was ‘pitch black’ because of the block-out curtains and that she closed her eyes ‘a lot of the times’. In relation to the offending in the Sigma, the complainant gave evidence that it was dark at the time of the offending and there was no lighting in the area.
Matter 11: the absence of the alleged sexual abuse in Ms Rois’s family law documents. In relation to matter 11, the applicant relied upon the fact that, in the proceeding under the Family Law Act that Ms Rois commenced in November 1987, she did not mention the applicant’s sexual abuse of the complainant even though she knew of it at that time. The applicant submitted that this created a reasonable possibility that the complainant had not disclosed her allegations to Ms Rois in 1987 — as she claimed — and that the sexual abuse did not take place. In our opinion, matter 11 cannot support a reasonable possibility that the offending did not take place. Ms Rois gave evidence that she did not refer to the sexual abuse because, in addition to custody of Trina and maintenance, the restraining order she sought was to protect herself from the applicant. Even if the jury rejected Ms Rois’s evidence on this matter, that rejection may have affected her credibility but it would have had little, if any, bearing upon the complainant’s reliability or credibility.
Matter 12: Contamination of the complainant’s evidence. In relation to matter 12, the applicant relied upon Ms Rois’s evidence that, prior to the complainant reporting the matter to police, she had had many discussions with the complainant and Trina about the alleged offending. He contended that the complainant’s evidence had been contaminated by those repeated conversations. He also contended that collusion between the complainant, Trina and Ms Rois could be inferred from the fact that Trina stated that she accused the applicant of being a child rapist in 2015,[18] which was prior to the time that she said she had been informed of the details of the alleged sexual abuse.
[18]See [89(c)] below.
In our opinion, matter 12 is without merit. The applicant has not identified how the complainant’s evidence has been contaminated by her conversations with Ms Rois and Trina. Ms Rois’s evidence was that her discussions with the complainant and Trina regarding the applicant’s offending concerned how they felt about the offending. Further, the evidence Trina gave at the committal hearing — which defence counsel read to her — provided the jury with a plausible explanation for her choice of language.[19] There is simply no evidentiary basis for this Court to infer that the three key prosecution witnesses colluded.
[19]See [90], [152] below.
Based upon our analysis of the 12 matters, we are of the view that they did not, either individually or collectively, require the jury to have a reasonable doubt that the applicant committed the offences the subject of charges 1 and 4. After seeing the complainant being cross-examined over a number of days, it was open to the jury to find that she was an honest, credible and reliable witness. Further, the totality of the evidence adduced at trial was more than sufficient to satisfy the jury of the applicant’s guilt to the criminal standard. Accordingly, ground 1 is not made out.
Ground 2: Admission of evidence of violence, admissions and PTSD
It will be recalled that ground 2 contends that a substantial miscarriage of justice occurred in the trial as a result of the admission of evidence where the probative value of the evidence was outweighed by the danger of unfair prejudice. The impugned evidence fell into the following three categories:
(a)parts of the applicant’s record of interview and evidence given by Ms Rois and Trina that the applicant had made admissions regarding sexual abuse of the complainant;
(b)parts of the applicant’s record of interview and evidence given by the complainant, Ms Rois and Trina that the applicant was violent towards the complainant; and
(c)evidence given by the complainant that she suffers from post‑traumatic stress disorder (‘PTSD’).
The impugned evidence
As set out above, the complainant gave evidence that the applicant was extremely violent towards Ms Rois and was also violent towards her. She stated that, although the applicant never seriously injured her, he used to belt her on the back of her legs with a wooden stick. She also stated that there were times when she tried to intervene when the applicant was physically abusing Ms Rois and he would get the complainant by her nightie, put her against a wall, say ‘Fuck up’ and drop her down.[20]
[20]See [35], [37(j)] above.
Ms Rois gave the following evidence in chief. The applicant became increasingly abusive to her. He was physically violent to her ‘[m]any many many times’, including many times when the complainant was present. He was ‘quite strict’ with the complainant and would discipline her using a wooden stick Ms Rois used for the washing machine. In cross-examination, Ms Rois stated that the complainant was scared of the applicant because he had threatened her life and Ms Rois’s life if she told Ms Rois anything.
As stated above, Ms Rois said that, when she got home after the complainant first disclosed the sexual abuse to her, the first thing she said to the applicant was, ‘You’ve been sexually abusing [the complainant].’ She said that he denied it a couple of times before eventually admitting it and saying, ‘Oh, you’d be happy that you’ve got something on me now’.[21]
[21]See [40] above.
Trina gave the following evidence in chief:
(a)The applicant was responsible for discipline within the household. He was angry, aggressive and scary when he disciplined her and the complainant. She learnt to behave herself so she would not have to see that. He would hit the complainant with a laundry stick. Trina was fearful of the stick, but did not remember being hit with it herself. She witnessed the applicant being violent towards Ms Rois. On one occasion when she was about 4 years old, she saw the applicant repeatedly smashing Ms Rois in the head with an object, causing blood to go ‘everywhere’.
(b)She ceased contact with the applicant when she was between 25 and 27. In 2007, when she was 30, he sought to re-establish a relationship. She decided to meet him to confront him about his sexual abuse of the complainant. She met him at a park and told him that she knew he had molested the complainant. He said, ‘yes I did’ and nodded his head. He then went ‘on a rant’. He said, ‘I’m so sorry. Please tell [the complainant] I’m so sorry, I regret it every day’ and then said ‘I have nightmares about it, I have nightmares, I’m so sorry about it’.
(c)In 2015, she had a telephone conversation with the applicant. She told him that she could not get over what he did to the complainant. She called him every name she could think of, including child molester, paedophile and child rapist, and he did not deny that he was those things. She asked him why he did it and he repeatedly said ‘I don’t know’. He had the same ‘rant’ as the earlier confrontation, saying ‘I’m so sorry, I’m so sorry, I wish I could take it back, I have nightmares, I’ve got nightmares’. She had not spoken to the applicant since that telephone conversation.
In cross-examination, Trina accepted that she stated at the committal hearing that, although she had not heard from the complainant that the applicant had sex with her, she concluded that he must have been raping the complainant because he stopped sexually abusing the complainant when she had her first period. She subsequently said that she called the applicant a ‘child rapist’ because she knew that the complainant had been raped. She said that she could work that out because it was obvious that something ‘pretty horrific’ had happened to the complaint and because of the way that the complainant talked about the sexual abuse over the years.
Defence counsel did not object to the admissibility of the evidence of the complainant, Ms Rois and Trina regarding the applicant’s violence towards Ms Rois or the evidence of Ms Rois and Trina that he made admissions to them. Defence counsel challenged the evidence that the applicant was violent towards the complainant. However, he tendered the complainant’s statement to police dated 16 March 2017, which referred to the applicant’s violence towards her and Ms Rois.[22] There was discussion in the absence of the jury about the potential prejudice of the evidence of the applicant’s violence. The prosecutor agreed to adduce only limited evidence of violence. In her charge, the judge directed the jury that they could use the evidence of violence only for the purpose of determining whether they accepted the complainant’s explanation for her failure to complain about the alleged offending at the time that it occurred. The judge also emphasised that the jury could not reason that the evidence of violence showed that the applicant was the sort of person who would have committed the charged offences.
[22]See [32] above.
The evidence regarding PTSD was given in the following circumstances. On the second day of the trial on 19 March 2021, defence counsel asked the complainant in cross‑examination whether she had memory problems. She replied ‘I suffer from P[T]SD. … Trauma, yes’. On the afternoon prior to the seventh day of the trial on 26 March 2021, the jury submitted a question seeking confirmation that the complainant ‘suffers from PTSD’. In the absence of the jury, the prosecutor submitted that he could ask the complainant if she had been diagnosed with PTSD and the details of any such diagnosis. Defence counsel contended that evidence of a diagnosis would be inadmissible hearsay and should be excluded. The judge’s initial answer to the jury question was that whether the complainant suffers from PTSD could not be confirmed at that stage. Following further discussions, both parties agreed that there was a risk that the jury might misuse the evidence of trauma by reasoning that the offending caused the complainant’s trauma. The judge ruled that the prosecutor could ask the complainant whether she had been ‘diagnosed by a psychologist with PTSD’, which he did in re‑examination on 26 March 2021. The complainant answered ‘Yes, I have’. To deal with the risk of misuse of this evidence by the jury, the judge gave a direction on 26 March 2021 that they could not reason that the complainant’s PTSD was due to sexual abuse, and also that there was no evidence as to whether the PTSD had affected her memory. The judge repeated this direction in her charge.
The parts of the applicant’s record of interview that are the subject of ground 2 were as follows.
Q 267 Yep.
ALook, it’s been the case — it’s been the case, like, when [the complainant] jumped on my back and stuff like I — curiosity because I knew, that’s what I felt a little bit guilty about it, that she’s never gunna go in there, it crossed my mind, that’s where my guilt [redaction] As I say, I swear I’ve never touched her genitalia and all that, her mother was not naive, only way you can prove something to her … was to prove it a hundred per cent.
…
Q 304 Mm’hm.
AAnd that’s why I’m shocked, I know the basic things, that I don’t need to talk to you, I could have called a lawyer — help me out or what’s the best way — I swear I have never done something like that. The mistake I made that I accepted that interfering and all that, about jumping on my back and all this stuff and all that and the curiosity, why? And the — what she is up to and all this, you know? And that’s why I didn’t want to talk ’cause I knew it — it’s — it’s so embarrassing and all that so I accepted and you kind of — you may as well even admitted to — to nothing.
…
Q 306 - - - interfering, what did that mean to you then?
AWell, I — I — I really didn’t know the — the — the — the — the — the — the proper meaning but — but I was a hundred per cent sure that it is not — that it is not a sexual — that’s how I interpreted it — interfering — it just mean it interfering like a — like a — I was protecting more [the complainant] — her jumping on my back and then she is curious or she wants to take her mother’s place or one thing leads to another and all that, you know, but obviously that was put a stop to it.
…
Q 491 Mm’hm.
A’Cause [Trina] didn’t use the words ‘molestation’ and things like that. She just used the things that — that has happened with — with — with — with [the complainant] and — and — and so on and then I stuck to me guns and I just said — as I’ve been saying early on, for over the years and all, that some things that have happened in the past that were — was unfortunately putting one thing to it — on top of the other, like, bashing the mother and having all this and that and that and that. So I said, ‘[Trina], I can’t change the — the things that happened in the past,’ because we went there with the assumption that [Trina] wants to have a relationship with me, ’cause we stopped that relationship a few years so we can get together. So there was kind of a — I was looking for the short cut out, to have a plan ......... relationship. I said, ‘I can’t change the past.’
Q 492 Mm.
A‘But certainly, I can do something for the future,’ and all — that’s obviously when the talking — as I mentioned before. I said, ‘Would you like dad to give you the details for — for — for [the complainant],’ and all that, ‘Dad, no need for that.’ So we kissed and cuddled and all this stuff.
Prior to the trial, defence counsel applied for the record of interview to be excluded. The main basis for the application was that the police contravened s 464D(1) of the Crimes Act[23] by failing to provide the applicant with an interpreter. In a ruling dated 15 March 2021, the judge rejected that application on the basis that the applicant was offered an interpreter but refused it. The judge also found that the applicant had demonstrated in his answers to the police questions that he had a good grasp of English and a full understanding of the allegations put to him.
[23]This section requires police to arrange for an interpreter to be present before commencing a record of interview when the person in custody ‘does not have a knowledge of the English language that is sufficient to enable the person to understand the questioning’.
The judge ruled that evidence of the applicant’s violence towards the complainant was relevant to her motive for her delay in complaining about the offending. The judge also ruled that evidence of the applicant’s violence towards Ms Rois was relevant to the threat to kill the complainant and Ms Rois which, according to the complainant’s evidence, was made by the applicant at the time of the first incident of sexual offending.
In her charge, the judge referred to the applicant’s response to question 267 in his record of interview that he felt ‘a little bit guilty about it’. She directed the jury that this statement was not an admission by the applicant that he felt guilty about the alleged offences, but he was simply saying that he felt guilty about not being firmer or putting boundaries around the complainant’s conduct at the time she jumped on his back. The judge also directed the jury on how they could use the evidence of Ms Rois and Trina that the applicant had made admissions to them. The judge said that, before they could use the evidence of those admissions, they had to be satisfied that the applicant made the admissions in the terms alleged and that by doing so he meant to admit that he had sexually abused the complainant. She stated that, even if the jury were satisfied of these two matters, because the admissions were general admissions rather than specific admissions of the charged conduct, the jury could not reason that the applicant admitted to committing the charged offences or that the admissions proved beyond reasonable doubt that he committed them. However, the jury could reason that it was more likely that the charged events occurred.
Applicant’s submissions on ground 2 and the Court’s decision on that ground
The applicant submitted that the judge erred by not excluding the impugned passages in the record of interview because of two difficulties he faced in understanding the interview questions. The first difficulty was that, although he spoke English sufficiently well to get by in his work, he was at a disadvantage during the interview because English was not his first language. The second difficulty was that his hearing was deficient.
According to the applicant, the judge had ruled that evidence of violence could be led insofar as it provided an explanation as to why the complainant had not complained immediately. He contended that, as the complainant complained a relatively short time after the alleged incidents were said to have occurred, the evidence of violence went beyond the limits permitted by the judge. Accordingly, so it was said, the trial was overwhelmed with powerfully prejudicial evidence — particularly from Trina — which should have been excluded.
The applicant argued that the hearsay evidence of the complaint having been diagnosed with PTSD should have been excluded. He submitted that the question from the jury indicated that unfair prejudice had been caused which could not be cured by the judge’s direction on the issue.
In our opinion, ground 2 is not made out.
The impugned evidence regarding the applicant’s admissions to Ms Rois and Trina had high probative value because they supported the complainant’s account that he sexually abused her. There was no unfairness in the manner in which Ms Rois and Trina conducted their conversations with the applicant which resulted in his admissions. The applicant did not deny that the conversations took place. Although he stated during his record of interview that he did not understand what he was being asked by Trina, it was a matter for the jury to decide whether he did so. The impugned evidence regarding the applicant’s violence towards the complainant was also relevant for the reasons given by the judge, namely, it explained why the complainant delayed in complaining about the offending. To the extent that any of this evidence had the potential to create unfair prejudice for the applicant, that risk was overcome by the directions the judge gave.
The judge was correct in rejecting the applicant’s application to exclude the record of interview on the basis of the absence of an interpreter.[24] The record of interview discloses that the applicant heard and understood the questions put to him and the nature of the allegations made against him. It is true that, when he was told during his record of interview that Ms Rois and Trina had confronted him and accused him of interfering with or molesting the complainant, he said that he did not understand the sexual connotation of those words at the time of the alleged confrontation. However, it is readily apparent that he knew the meaning of those words at the time of the record of interview and was able to deny that he had sexually abused the complainant. As for the applicant’s hearing, there was no admissible evidence at trial that his hearing was deficient at the time of, or prior to, the record of interview.[25]
[24]See [94] above.
[25]See also [122] below.
In our opinion, ground 6 is not made out.
As we have already stated, defence counsel cross-examined the complainant for the equivalent of four days before the jury. He cross-examined each of Ms Rois and Trina for the equivalent of one day and the informant for the equivalent of just over half a day. This extensive cross-examination was unwarranted in the light of the fact that the applicant faced four charges — with charge 3 being an alternative to charge 2 — that involved three incidents covering a relatively confined period of time. The length of the cross-examination resulted from defence counsel asking many questions that were irrelevant, repetitive, vague, long‑winded and multi-propositional. Some of the questions also sought to elicit evidence that was inadmissible or contrary to previous rulings made by the judge, or were otherwise inappropriate.
The judge cautioned defence counsel on numerous occasions about the nature of his questions and the length of his cross-examination. Despite these cautions, defence counsel continued to conduct the defence case in the same manner. In these circumstances, as stated by the judge in the exchange with defence counsel as set out at [139] above, it was necessary for the judge to intervene in the manner that she did in order to ensure the trial was conducted fairly. We note that some interventions were helpful to the defence.[34]
[34]For example, when defence counsel stated that he had no further questions for Ms Rois, the judge asked him ‘Were you going to put the motive, the one you put previously about financial gain?’
We accept that at times — including the judge’s exchange with defence counsel set out at [140] above — the judge displayed sarcasm and used strident language to rebuke him. She also sighed and gave other non-verbal signs of her disapproval of defence counsel’s conduct. At times, she pointedly cross-examined him in the presence of the jury and some of her criticisms of his questions were unwarranted and distracting. However, as has often been said, judges are only human. In the present case, in a trial extending over 17 days, the judge’s conduct overall was balanced and restrained. Unlike Piccolotto, the instances of indiscretions on the judge’s part in the present case did not create a trial atmosphere that was prejudicial to the defence case. Further, the direction that the judge twice gave to the jury — which is set out at [143] above — overcame any risk that they might treat her exchanges with defence counsel as reflecting adversely upon the defence case.
We also agree with the Crown’s concession that the judge’s example of inferential reasoning was unwise. At the committal hearing, Trina stated that she concluded that the applicant must have been raping the complainant because she found out that he stopped abusing the complainant when she got her first period.[35] At trial, defence counsel read out this evidence from the committal hearing and Trina agreed that she had given that evidence. However, Trina was not expressly asked whether that prior evidence was true. Further, she did not, in terms, say that she used the phrase ‘child rapist’ to describe the applicant because she was aware that the sexual abuse of the complainant ceased once she had her first period and therefore she assumed or inferred that the abuse involved penetration. In his closing address, whilst the prosecutor referred to Trina’s evidence that she knew that the sexual offending stopped when the complainant got her first period, he did not say that Trina inferred that the applicant was a child rapist because the offending ceased upon the complainant having her first period.
[35]See [90] above.
It is, of course, appropriate for a trial judge to explain directions of law by reference to matters that arose in the trial rather than relying purely on hypothetical examples. However, it is important that, in doing so, the judge does not stray beyond the precise parameters of the evidence given in the case. Here, the judge introduced a basis for supporting Trina’s inference that the applicant was a child rapist that was not expressly relied upon as such by Trina or by the prosecutor. To that extent, the judge’s example bordered on a comment on a contested factual matter and had the potential to assist Trina’s credibility and thus support the prosecution case.
More fundamentally, the judge’s example — which was referred to twice in her charge — related to an element of the charged offences (penetration) and followed another example which concerned an inference about an element of an offence which the prosecution had to prove was the only reasonable inference that was available. In these circumstances, the jury may have understood the judge to be saying that, where all that is known is that sexual abuse of a young girl ceased when she had her first period, it is permissible to reason that the only reasonable inference that can be drawn is that the sexual abuse involved a form of sexual penetration. That proposition cannot be correct in light of the fact that sexual abuse of a young girl can take many forms, some penetrative and some non-penetrative, and in circumstances where penetrative sexual abuse is not confined to penetration of a vagina and where penetration of a vagina is not confined to penile-vaginal penetration.
The above considerations clearly indicate that, whilst it would have been appropriate for the judge to remind the jury of Trina’s evidence about why she accused the applicant of being a child rapist, it was not appropriate for her to elevate this issue to the status of a legal direction on how the jury may use inferential reasoning.
Notwithstanding the above, the judge’s example related to Trina rather than the complainant and the absence of an exception to it by defence counsel — who raised a number of exceptions to the judge’s charge — indicates that it was not a significant matter in the overall scheme of the trial. The example did not add much, if anything, to the direct and unshaken evidence of the complainant that the applicant continued to penetrate her vagina with his penis until she had her first period. Accordingly, the example could not have had a material bearing on the credibility or reliability of the complainant’s evidence and thus could not have affected the outcome of the trial. It is not surprising that there is no discrete ground of appeal before us that alleges that the judge’s example constitutes an error or irregularity in the trial which has resulted in a substantial miscarriage of justice.[36]
[36]CPA, s 276(1)(b).
Conclusion in relation to the application for leave to appeal against conviction
For the above reasons, the application for leave to appeal against conviction will be refused.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
It will be recalled from the sentencing table set out at [3] above that the applicant was sentenced to 6 years’ imprisonment for each of charge 1 (carnal knowledge) and charge 4 (incest), and that the cumulation of 2 years for the sentence for charge 1 resulted in a total effective sentence of 8 years’ imprisonment. The judge fixed a non‑parole period of 6 years’ imprisonment.
It will be recalled from [5] above, that the applicant seeks leave to appeal against his sentence on the following grounds:
[1]The sentence was in all the circumstances manifestly excessive.
[2]The trial judge erred in her characterisation of the jury verdict of not guilty in relation to charge 3.
We will summarise the applicant’s personal circumstances and the judge’s sentencing remarks before dealing with ground 2 and then ground 1.
Applicant’s personal circumstances
The applicant was aged between 30 and 31 at the time of the offending the subject of charge 1 and between 32 and 34 at the time of the offending the subject of charge 4. He was 72 at the time of sentence.
The applicant is the eldest of four children. In 1970, he migrated to Australia from the European country in which he was born on 19 October 1949. His parents and siblings followed a year later.
The applicant had a poor but happy childhood within a close-knit family. He had a consistent employment history, working primarily as a process worker.
The applicant has a limited prior criminal history which the judge described as not having any relevance to the sentencing exercise.
A report dated 10 September 2021 from a psychologist, Penelope Karvelis, was tendered on the plea. She stated that the applicant suffered from a severe major depressive disorder, recurrent, while he was married to Ms Rois and that he currently suffers from a severe major depressive disorder, recurrent with anxious distress and suicidal ideation in response to the jury’s guilty verdicts and his concerns about the impact of incarceration upon him and his family. She also stated that he continues to be at significant risk of experiencing further deterioration in his mental state if he is incarcerated and that his symptoms are likely to be more intense and prolonged than if he were a person who was not already suffering a severe major depressive disorder.
The applicant continues to maintain his innocence.
Judge’s sentencing remarks
In her sentencing remarks, the judge rejected the untenable submission by defence counsel that a sentence of no more than 12 months together with a community correction order should be imposed, for the following reasons:
In my view, the sentence suggested by [defence] counsel is entirely inadequate for this offending … [The applicant] may have gone on to live an exemplary and happy life in the years since offending so grievously against [his] young stepdaughter, … but [he has] left a trail of grief and destruction in [his] wake, as [is] inevitably the situation in cases of this kind involving serious sexual abuse of young children.[37]
[37]Sentencing remarks, [29].
The judge noted that ‘[the prosecutor] pointed to the 2016 Court of Appeal decision in Dalgliesh, where the Court stated that sentences being imposed for incest were inadequate at that time, which view was upheld by the High Court in that case in 2017’.[38] The judge did not make any further reference to this submission and did not otherwise refer to the case of Dalgliesh.
[38]Sentencing remarks, [28].
The judge’s reasons for sentence are encapsulated in the following paragraphs of her sentencing remarks:
[The complainant, Ms Rois and Trina] have lived lives of continuing anguish and suffering. [The applicant] committed heinous sexual offences against an innocent child left in [his] care and the result and damage she described is … entirely familiar to these Courts. That offending was a gross and cruel breach of trust and the utter exploitation of a little girl in order to satisfy [the applicant’s] sexual desires. That [he] threatened to kill [the complainant] and her mother if she told anyone, I regard as an aggravating factor. The ill effects of [the applicant’s] offending have rippled out to envelop her mother and [the applicant’s] own daughter whose birth, according to what [he] told [his] psychologist, was the happiest day of [his] life.
Each are likely to suffer from the psychological impact of [the applicant’s] offending for the rest of their lives. [The applicant has] shown not one shred of remorse apart from protestations of sorrow to Trina in 2007 when [he] admitted to her what [he] had done. They count for little in the face of the cross‑examination to the effect that her evidence on this point was a lie. [The complainant, Ms Rois and Trina] were subjected to the trauma of cross‑examination at committal and trial during which each of whom was accused of dishonesty and fabrication. The prosecution case, involving as it did, evidence from Ms Rois and [Trina] of admissions by [the applicant] to sexually abusing [the complainant] was, in my view, a strong one. [The complainant, Ms Rois and Trina] were also, to my observation, credible and reliable witnesses who stoically withstood lengthy cross-examination at trial.
In my view, the principles of general deterrence, denunciation of [the applicant’s] offending and just punishment dominate the sentencing exercise I must undertake. In sentencing [the applicant], I do accept that gaol at [his] age and for the first time will weigh more heavily on [him] than other prisoners. I accept [he] did go on to lead a responsible and law-abiding life and I accept [he does] not present a danger to the community. However, I do not regard [his] current reactive emotional state as exceptional and in any event, those mitigating factors in my view pale somewhat against the gravity of [his] offending. I must also apply current sentencing principles to [his] case. I do note that [he suffers] from blood pressure and high cholesterol, but these were the only health difficulties presented to me.[39]
[39]Sentencing remarks, [30]–[32].
Ground 2: Judge’s characterisation of verdicts of not guilty for charge 3
It will be recalled from [15] above that the jury found the applicant not guilty of the charge of incest (charge 2) and the alternative charge of carnal knowledge (charge 3). It will also be recalled that those charges related to an alleged incident in which the applicant had penile-vaginal intercourse with the complainant after promising to buy her a mint-coloured miniskirt, and that the complainant gave unclear evidence about her age at the time of the purchase of the miniskirt.
On the plea, defence counsel submitted that the judge should treat the jury’s verdict of not guilty for charges 2 and 3 as a rejection by the jury of the complainant’s evidence about the uncharged acts of frequent penile-vaginal penetration until she had her first period. On the other hand, the prosecutor submitted that, as the complainant gave contradictory evidence about her age at the time of the offending the subject of charges 2 and 3, the jury’s verdict was explicable on the basis that they were satisfied that penile-vaginal penetration had occurred, but they were not satisfied about her age at that time.
The judge accepted the prosecutor’s submission for the following reasons:
To my mind, there was nothing in the evidence beyond the difficulty of proving to the required standard the complainant’s age, which would rationally account for the guilty verdicts which were then returned by the jury on Charges 1 and 4. I do not accept that the verdict on Charges 2 and 3 represents a rejection of the uncharged acts of which [the complainant] gave evidence.
The jury were instructed that they could not find [the applicant] guilty of either Charge 2 or 3 unless satisfied beyond reasonable doubt of [the complainant’s] age at the time of the alleged offending underlying each charge. Indeed, [in] his final address, the prosecutor … acknowledged to the jury the difficulties faced by the prosecution in that regard. As I have said, I do not accept that acquittal means the jury also rejected the evidence of other uncharged acts. [The applicant is] not to be sentenced for the uncharged acts, but they are relevant as providing context to the offending of which [he is] convicted and mean that in sentencing [him], I do not regard that the offending of which [he was] convicted, as comprising two single isolated incidents committed several years apart.[40]
[40]Sentencing remarks, [10]–[11].
The applicant submitted that, on the basis of the not guilty verdict in relation to charge 3, for the purposes of sentencing him, the judge could not rule out that the jury did not accept the complainant’s evidence concerning the offending on the day the mint‑coloured miniskirt was purchased. Accordingly, so he contended, the judge could not find to the criminal standard that he committed the uncharged acts to which the complainant referred in her evidence, namely, regular penile-vaginal penetration between the incident the subject of charge 1 and the time she had her first period. He argued that the judge should have sentenced him on the basis that the acts of penetration the subject of charges 1 and 4 were the only incidences of offending — rather than on the basis that they were not isolated — thus significantly reducing his culpability and the severity of the sentence.
In our opinion, ground 2 is not made out.
The most likely explanation for the jury’s not guilty verdicts for charges 2 and 3 was that the jury were not satisfied beyond reasonable doubt about the applicant’s age at the time of the incident the subject of those charges. Even if it is assumed that the jury reached those verdicts because they did not believe the complainant’s evidence that the applicant penetrated her vagina with his penis on the day the mint-coloured miniskirt was purchased, that would not mean that ground 2 would be made out. That is because charges 2 and 3 related to offending on a particular day and the jury’s verdicts in relation to those charges did not preclude acceptance of the complainant’s evidence that penile-vaginal penetration occurred in the main bedroom on a regular basis between the date of the incident the subject of charge 1 and the date the complainant had her first period. In other words, regardless of the reason for the verdicts of not guilty on charges 2 and 3, there was ample other evidence of uncharged acts which well justified the judge’s finding that the offending the subject of charges 1 and 4 was not isolated. We also note that the judge expressly acknowledged that this was the only purpose for which the uncharged acts were relevant and that the applicant was not being sentenced for those uncharged acts.
Ground 1: Manifest excess
The applicant submitted that the sentence imposed by the judge was manifestly excessive because she misapplied the High Court’s decision in Dalgliesh,[41] failed to give appropriate weight to delay, failed to apply Verdins[42] principles 2 to 6,[43] and gave inappropriate weight to specific and general deterrence.
[41]DPP v Dalgliesh (2017) 262 CLR 428.
[42]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[43]See [180] below.
In its 2016 decision in Dalgliesh, this Court stated that sentences for incest had been too low and that sentences for mid-range incest offences should be increased incrementally.[44] A County Court judge had sentenced the offender in that case to 3 years and 6 months’ imprisonment for an offence of incest committed against his 13 year old stepdaughter, which resulted in pregnancy. This Court dismissed a Crown appeal against sentence. The High Court upheld the Crown’s further appeal and remitted the matter to this Court. In its reasons, the High Court plurality referred to the 1986 decision of the Victorian Court of Criminal Appeal in R v Kaye,[45] which allowed an appeal against sentence of 6 years’ imprisonment for the offence of incest involving the violent sexual penetration of the offender’s 14 year old stepdaughter against her will, and resentenced him to 4 years and 6 months’ imprisonment. The plurality stated that ‘[i]t is difficult to imagine that a sentence of less than six years’ imprisonment could have been regarded as a just sentence in [the] circumstances [of the Kaye case] even at that time’.[46] Upon remitter, this Court resentenced the offender in Dalgliesh to 7 years and 6 months’ imprisonment.[47]
[44]DPP v Dalgliesh [2016] VSCA 148, [131].
[45](1986) 22 A Crim R 366 (‘Kaye’).
[46]DPP v Dalgliesh (2017) 262 CLR 428, 447 [55].
[47]DPP v Dalgliesh (2017) 271 A Crim R 1, 17 [81].
The applicant submitted that, in the present case, it appeared that the judge imposed a sentence of 6 years’ imprisonment for each of charges 1 and 4 because she treated the plurality’s statement in the High Court decision in Dalgliesh ‘as a kind of benchmark for her sentencing’. He contended that the offending in Kaye and Dalgliesh involved aggravating features which significantly distinguish it from the offending in the present case.
The applicant argued that the judge failed to give appropriate weight to the delay of around 40 years between the offending and the sentence, and to the fact that he had not reoffended during that period and had rebuilt his life with a new partner. In oral submissions, the applicant contended that the prospect of being charged and sentenced for the offending hung over his head for a period of just over 4 years from the time of his record of interview on 1 September 2017 and the time he was sentenced on 22 October 2021.
According to the applicant, on the basis of Ms Karvelis’s report, Verdins principles 2, 4, 5 and 6 were ‘strongly applicable’ and principle 3 was ‘also applicable’. Verdins principles 2 to 6 are as follows:
2The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4Whether specific deterrence should be moderated or eliminated as a sentencing consideration … depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[48]
[48]Verdins (2007) 16 VR 269, 276 [32] (citations omitted).
The applicant submitted that it appeared that the judge did not give appropriate, or any, weight to Verdins principles 2 to 6. In oral submissions, counsel for the applicant conceded that Ms Karvelis’s report did not draw a link between the applicant’s depressive disorder and his offending.
The applicant submitted that, in the light of his age and personal circumstances and the absence of a criminal history, specific deterrence had little or no application to his case as there was no real prospect of reoffending. Further, according to the applicant, given the historical nature of the offending and his personal circumstances, general deterrence had a limited operation.
In our opinion, having regard to the gravity of the applicant’s offending, his moral culpability and the limited nature of the mitigating factors upon which he was able to rely, it is not reasonably arguable that the individual sentences, orders for cumulation and total effective sentence are manifestly excessive.
The judge was right to describe the applicant’s offending as ‘serious’, ‘grievous’, and ‘heinous’. As stated by her, the offending involved ‘a gross and cruel breach of trust’, ‘the utter exploitation of a little girl in order to satisfy [the applicant’s] sexual desires’ and was aggravated by the threat to kill Ms Rois and the complainant if she told anyone about the offending. The complainant’s victim impact statement confirms what would otherwise be presumed, namely, that the offending had a profound lifelong impact upon her.
Although the judge did not make a specific finding about the applicant’s moral culpability, in the light of the matters set out at [184] above, it can only be described as high.
As the applicant pleaded not guilty and did not demonstrate any remorse, he was not entitled to the significant moderation in sentence that would otherwise have applied.
We reject the applicant’s submission that the judge treated the plurality’s statement in the High Court decision in Dalgliesh ‘as a kind of benchmark for her sentencing’. As we stated at [168] above, after setting out the prosecutor’s submission that the Court of Appeal’s 2016 decision in Dalgliesh stated that sentencing for incest was too low at that time, the judge made no further reference to Dalgliesh. She did not refer to the High Court’s decision in Dalgliesh, let alone the plurality’s statement. To the extent that the applicant sought to submit that the judge should have sentenced him to less than 6 years’ imprisonment for charge 4 because his offending was less serious than that of the offenders in Kaye and Dalgliesh, that submission ignores the fact that both of those cases involved pleas of guilty. In our opinion, having regard to current sentencing practices, a sentence of 6 years’ imprisonment for incest in a case where the offender does not have the benefit of a plea of guilty or a finding of remorse is very lenient, rather than manifestly excessive.
Although the judge did not expressly mention delay, her references to the applicant living ‘an exemplary and happy life in the years since offending’, to the applicant leading ‘a responsible and law-abiding life’ and to the applicant not presenting as a danger to the community, indicate that she took into account the rehabilitative limb of delay. It appears that the judge did not take into account the second limb of delay, namely, the distress of the charges hanging over the applicant’s head. However, the period to which that limb could apply was of limited duration and could not have made any material difference to the exercise of the sentencing discretion.
We reject the applicant’s submission that the judge failed to properly apply the principles in Verdins. In our opinion, on the basis of Ms Karvelis’s report which is summarised at [165] above, only Verdins principles 5 and 6 were enlivened. The judge gave appropriate consideration to those principles.
General deterrence is always a significant sentencing consideration in cases of sexual offending against children. In the present case, the judge was entitled to regard it as so notwithstanding the historical nature of the offending and the applicant’s personal circumstances. It appears that the judge did not give any weight to specific deterrence. She only referred to this sentencing consideration when summarising the applicant’s submissions. She also accepted that the applicant did not pose a present danger to the community.
It follows that ground 1 is not made out.
Conclusion in relation to the application for leave to appeal against sentence
For the above reasons, the application for leave to appeal against sentence will be refused.
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