O'Brien (a Pseudonym) v The Queen
[2014] VSCA 94
•21 May 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0255 | |
| RUSSELL O’BRIEN (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGES: | NETTLE and PRIEST JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 April 2014 | |
DATE OF JUDGMENT: | 21 May 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 94 | 1st Revision 26 May 2014, [48] |
JUDGMENT APPEALED FROM: | DPP v [O’Brien] (Unreported, County Court of Victoria, Judge Douglas, 4 December 2013) | |
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CRIMINAL LAW – Conviction – Sexual penetration (one charge) and indecent acts with child under 16 years (three charges) – Jury unable to agree on remaining two counts of sexual penetration – Verdict – Whether verdict unreasonable and not supported by evidence – Evidence – Credit – Complainant recanting parts of VARE statement and consequent inconsistencies between VARE statements – Prior inconsistent statement – Appeal dismissed – MFA v The Queen (2002) 213 CLR 606; Libke v The Queen (2007) 230 CLR 559; BCM v R (2013) 303 ALR 387; R v Klamo (2008) 18 VR 644, referred to.
CRIMINAL LAW – Sentence – Applicant sentenced to total effective sentence of four years’ imprisonment with non-parole period of two years – Delay – Mitigating factor – Delay of 16 months – Whether judge took delay sufficiently into account – Appeal allowed – Applicant re-sentenced to total effective sentence of three years’ imprisonment with non-parole period of 18 months – Arthars v R; Plater v R [2013] VSCA 258, referred to.
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC | Matthew White & Associates |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
Following a trial in the County Court, the applicant was convicted of one charge of sexual penetration of a child under the age of 16 years and three charges of indecent act with a child under the age of 16 years and was sentenced therefor to a total effective sentence of four years’ imprisonment with a non-parole period of two years. He now seeks leave to appeal against both conviction and sentence.
The facts of the matter
At relevant times, the applicant lived with his de-facto wife, W, his daughter, D, and his son, S, in a three bedroom home in one of the eastern suburbs of Melbourne. An adult student, A, was also living in the house.
The complainant in respect of each of the charges, C, was 12 years old at the time of the offending. She and D were of much the same age and best friends. Consequently C frequently stayed overnight at the applicant’s home where the offences were alleged to be committed.
The Crown case was that the offences comprising charges 1 to 4 occurred on the night of D’s birthday party in March 2011. C and another friend, F, who was of similar age to D and C, stayed overnight after the party. The three girls set up mattresses on the living room floor. D lay on the mattress between the mattresses occupied by C and F. D woke during the night and, because she was cold, moved to sleep in her parents’ room. Sometime later, C was woken by the applicant kneeling beside her. She observed that D, who had been lying next to her, was no longer in the living room. F, however, was still there lying on the far side of the applicant. The applicant took hold of C’s hand and placed it on his exposed penis and moved it up and down (charge 1: Indecent act with a child under 16 years). While still holding C’s hand on his penis, he inserted a finger of his other hand into C’s vagina (charge 2: Sexual penetration of a child under 16 years). He then bent down and licked C’s vagina (charge 3: Indecent act with a child under 16 years). Then, he let go her hand, and she pulled it away from his penis, and he moved his hand under her T-shirt and squeezed her breasts (charge 4: Indecent act with a child under 16 years). He stopped when C started crying and repeating that he should stop, that she hated it and that she would call the police. She also ‘kicked’ him off by putting her leg under his stomach and levering him away.
The applicant was further charged with offences alleged to have been committed against C during another sleep-over shortly before 23 May 2011 (charges 5 and 6). C said that, after watching a movie called ‘Rio’, she and D went to D’s bedroom where C went to sleep on a mattress on the floor and D went to sleep on the bottom bed of a double bunk bed. Later, the applicant came into the room and lay on the unoccupied upper bunk. After talking to the applicant for a while, C left the room and went to the kitchen to get a glass of water. On her way back to the bedroom, the applicant guided her into the sitting room and onto a couch. He removed her jeans and pushed her legs back and apart and licked her vagina (charge 5: sexual penetration of a child under 16 years). D then walked out from the bedroom and the applicant stopped, after which C went back to D’s room and went to sleep on the mattress on the floor. Later in the night, C woke to the applicant inserting his fingers into her vagina (charge 6: Sexual penetration of a child under 16 years).
The following Monday, 23 May 2011, C told F at school that the applicant had ‘raped’ her. That night, F told her mother of what C had said and the police were brought in to investigate. On 24 May 2011, police arrived at the school and spoke to C in the presence of her mother. C was subsequently medically examined but the results of the examination were neutral in that they neither supported nor threw doubt on C’s complaint.
The applicant was arrested at his home and co-operated fully with police. He participated in a lengthy record of interview and answered all of several hundred questions put to him. He denied C’s allegations (which, as will be explained, were then in some respects different to the evidence which C later gave). He also consented to providing DNA samples.
On 25 May 2011, C made a VARE statement to police and on 28 May 2011, D and F also made VARE statements.
On 25 June 2011, the applicant attended for a further interview at the request of the police. At that time the allegations made in the VARE statements of C and F were put to him and he denied any impropriety. He admitted that he had lain next to C on the night of the birthday party. He sought to explain that, however, on the basis that, as a result of D coming into his and W’s bed, there was no space for him to sleep and so he had gone to the living room to sleep on D’s mattress. He denied being naked. He denied that he had engaged in any sexual conduct with C and he denied that there had been any conversation or physical confrontation with C.
Procedural history of the matter
Initially, police considered there to be insufficient evidence to proceed against the applicant. But, on 30 September 2012, some 16 months after complaint was first made, police laid charges. Then, on 23 April 2013, during the week preceding the scheduled date for trial, C made a further VARE statement in which she retracted some of her allegations with respect to charges 5 and 6. Immediately before the commencement of the trial, C was cross-examined at a special hearing.
As events transpired, the applicant was put up for trial on three occasions. The first trial was aborted in May 2013, a few days after it began, when the jury were discharged due to concern about an irregularity. In the second trial, the jury deliberated for four days and returned a verdict of acquittal of one charge (which related to an offence alleged to have been committed against C at an earlier point of time) but were unable to reach a verdict on what were later denominated as charges 1 to 6. The third trial was held in November 2013 and resulted in the jury returning verdicts of guilty of charges 1 to 4 but being unable to reach a verdict on charges 5 and 6. Days later, the Crown discontinued charges 5 and 6.
The applicant’s contentions
The applicant contends that the verdicts returned on charges 1 to 4 are unreasonable and cannot be supported having regard to the evidence.
The nub of the argument is that the jury could not properly have convicted the applicant without being satisfied beyond reasonable doubt of the truth of C’s evidence and that there were such significant defects in her testimony that the jury could not properly have been satisfied beyond reasonable doubt of its veracity. In particular, the applicant says, C’s evidence was fundamentally compromised in the following respects.
First, C recanted serious allegations in relation to charges 5 and 6 only days before the commencement of the first trial. Counsel for the applicant submitted that the reasons which C gave for making those allegations and then withdrawing them were also such as necessarily to infect the whole of her testimony. He added that the evidence given by D concerning charges 5 and 6 cast further doubt upon C’s veracity.
Secondly, the applicant says, the inconsistencies between the version of events which C relayed to F when she first complained of having been ‘raped’ and the content of C’s evidence at trial rendered both versions unlikely. Counsel pointed in particular to the fact that the specific conduct the subject of charges 1 to 4 was not articulated in the initial complaint; the terminology of the complaint was inconsistent with the complainant’s age and the conduct alleged (it being unlikely, in counsel’s submission, that a 12 year old schoolgirl would speak of digital penetration and cunnilingus as ‘rape’); the delay of some 10 weeks between the acts alleged to have constituted charges 1 to 4 and the complaint; and the existence of a possible motive to lie, inasmuch as, during C’s VARE interview, she spoke at one point in terms suggestive of being jealous of D’s relative affluence and superior quality of family life.
Thirdly, the applicant points to C’s failure to make any mention of charge 5 during the course of the initial disclosure interview; that at that time she gave a different version of the facts alleged to comprise charge 6; and that she did not mention directly or particularise any allegations of conduct with respect to charges 1 to 4. As well, C made claims in connection with charges 5 and 6 of acts such as sucking on breasts and kissing on the neck and the applicant rubbing her stomach which she did not later maintain, with the result that, when the applicant was first arrested and interviewed, the allegations put to him were either completely different to their final form or not persisted in and he had no chance of responding at that point to the allegations ultimately made against him.
Fourthly, the applicant relies on inconsistencies between the version of events which C gave to the examining physician at the time of her medical examination and the version of events which she gave the next day during the course of her first VARE interview.
Fifthly, the applicant refers to inconsistencies between C’s VARE and the evidence which she gave during the special hearing.
Sixthly, the applicant stresses what he says is the inherent improbability of the allegations, given that the applicant’s house was small, F was in the room at the time of the alleged offending, W and D were only a short distance away in the master bedroom and the house was so constructed that sound readily carried from one room to another. How likely is it, counsel asked rhetorically, that the applicant would take the risk of offending in circumstances of that kind. The improbability of it all was further accentuated, counsel submitted, by the way in which C behaved on the morning after the alleged offending, as if nothing untoward had occurred, thereafter continued to visit the applicant’s home on a regular basis and waited another 10 weeks before complaining to F.
Lastly, the applicant prays in aid evidence of his previous good character which, in his submission, adds to the improbability of C’s allegations.
In all the circumstances, it is said that the jury were bound to have a reasonable doubt about the truth of C’s allegations concerning charges 1 to 4 and, therefore, were bound to acquit him of those charges.
Crown’s contentions
The Crown argues that the assessment of C’s credibility was pre-eminently a matter for the jury and that there were no solid obstacles in the way of them accepting C’s evidence on critical facts. Read as a whole, the manner in which C gave her evidence as well as its content strongly implied that she was a credible witness.
Additionally, the Crown says, the applicant’s evidence was reinforced in critical respects by the evidence of F that, when she woke during the night of the party, D was gone; the applicant was lying beside C; ‘it looked like he was trying to move [C’s] legs or something’; she heard C say ‘stop’ and ‘I’ll call the police’; and that F was sufficiently concerned about what that meant to ask C what was wrong. In the Crown’s submission, confirmation that the applicant was lying beside a 12 year old girl in the middle of the night, apparently attempting to move her legs, being told to stop it and that C could call the police, although not direct evidence of the commission of the offences, was strongly supportive of the complainant’s allegations of improper sexual activity.[2]
[2]MFA v The Queen (2002) 213 CLR 606, 615 [28], 625 [65]–[66].
Further, the Crown says, the reasons which C gave for the admitted falsity of her initial VARE and for changing her account of charges 5 and 6 were readily understandable. She was after all only 12 years old at the time of the offending and 14 at the time of the special hearing. Differences in detail were not surprising given what the jury might suppose was the limited ability of a 12 year old girl to recall and state in precise sequential order the intimate details of profoundly troubling events. Additionally, when first spoken to by police, C had not been forewarned that she would be interviewed and it may well be she was scared that she would be in trouble for allowing the offences to occur. The same was true of her initial version of charges 5 and 6. As she said when cross-examined, she dressed up her version of events because she did not wish it to appear that the offending was her fault or such that she should to be blamed for it. In the Crown’s submission, that made evident sense given that, only days before the first VARE, C told F that she had written numerous letters to herself berating herself for her fault in allowing the applicant to abuse her and given that, when the police came to speak to her at school, she was scared that she was in trouble.
The Crown contends that the other considerations identified by the applicant as casting doubt on C’s veracity were also explicable in ways which the jury are entitled to have regarded as convincing. The delay in complaint was, as C said, because of her embarrassment and sense that she was to blame for what had occurred. Her continued association with the applicant’s family after the offending was due to the fact that D was her best friend, C looked upon the applicant as a father figure and valued the support which that entailed, and C was scared that, if she complained, the applicant would be sent to gaol and that would be the end of her friendship with D. The Crown submits that the jury would properly have regarded those explanations as compelling.
In the Crown’s submission, too, many of the supposed inconsistencies in C’s cross-examination were really no more than manifestations of C’s jejune pattern of speech as opposed to differences of substance. For instance, she spoke at one point of having a ‘massive argument’ with the applicant after he had molested her on the living room floor next to F. But, as she made clear in cross-examination, she did not mean by ‘massive argument’ that she raised her voice. She spoke at another point of ‘kicking’ the applicant in order to induce him to stop molesting her. But, as she explained in cross-examination, by kicking she meant ‘kind of pushed my foot underneath his belly and was a push, like, I pushed him away from me…’. In that connection, the Crown also emphasises once again that F was close by and heard C say to stop and that she could call the police.
Further, says the Crown, there was nothing inherently improbable about C’s account of what occurred; for experience shows that sexual offenders can and frequently do engage in sexual conduct with children in close proximity to other family members. Despite the fact that noise may have travelled easily in the house, there is nothing to say that other family members were likely to have been alert to the sound of the applicant assaulting C. C did not suggest that it entailed a great deal of noise. In contrast, the fact that F (who was lying next to the applicant) woke up and heard what she did, strongly implied that there was something amiss.
Finally, as to charges 5 and 6, the Crown submits that, despite the changes in C’s evidence about some of the details, there remained powerful evidence that the applicant did sexually assault C on the ‘Rio’ movie occasion and that, so far from D’s testimony throwing doubt on that, her evidence that she saw C in the chair with the applicant standing in front facing towards C was supportive of C’s allegations.
All things considered, the Crown’s contends, it was well open to the jury to accept C’s testimony as to charges 1 to 4 and thus to convict the applicant of those offences.
Analysis
As the High Court has made clear, the test of whether a jury were bound to find in an accused’s favour in a case of this kind[3] is not whether it was open to have a reasonable doubt about the accused’s guilt but whether upon the whole of the evidence before them the jury were bound to have a reasonable doubt about his guilt.[4] Consequently, for the purposes of this application, the test is not whether there are arguments — even good arguments — that it was open to the jury to have a reasonable doubt about the applicant’s guilt. It is rather whether on the whole of the evidence the jury were bound to have a reasonable doubt. As Maxwell P put it compendiously in R v Klamo,[5] in effect that means whether there were any solid obstacles blocking the jury’s path to a finding of guilt.
[3]Where it is not suggested that the evidence, if accepted, would be incapable of supporting the verdict: cf BCM v The Queen (2013) ALR 387, 391 [31].
[4]Libke v The Queen (2007) 230 CLR 559, 596–7, [113] Hayne J, citing M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); SKA v The Queen (2011) 243 CLR 400, 408 [20]–[22]; Potter v R [2013] VSCA 291, [56]–[57] (Maxwell P); BCM v The Queen [2013] HCA 48, [31].
[5] (2008) 18 VR 644, [40].
In order to answer that question it is convenient to deal first with the applicant’s specific criticisms of C’s evidence.
(i) No reference to the charge 5 and 6 offences in C’s complaint to F
In the course of oral argument, counsel for the applicant identified as his first criticism of C’s evidence that, according to F’s report of C’s complaint, C did not then refer to the events the subject of charges 5 and 6.
I do not think that to be a matter of much moment. According to F’s VARE statement, C told her that the applicant had assaulted her more than five times and that it had been going on for about a year:
Q63: Tell me everything from the start to the finish what [C} told you. ---
A:Well, it was lunchtime and she came to me and said, [F], I want to talk to you, and I’m like, O.K., because I, because she always tells me a lot of her secrets, because she trusts me, and I say, O.K., and she takes me to near the back of the school or whatever near one of the, somewhere where she can tell me something and where it’s quiet and stuff and she says, [F] remember that night at [D]’s birthday party how you heard me say, I can call the police, you know, and I said, Yes, I remember that, and she’s, and then, and I go, Yes, I do remember, and then she says, Well [the applicant] raped me, and I was really shocked and I asked her several times, again and again, and again, Are you sure? Are you sure? Are you sure? Are you telling me the truth and she’s like, Yes. I couldn’t be more sure, and then she says that she’s written lots of angry letters to herself and thrown them in the fire and I said, Why to yourself, and she said, Because it’s my fault, and I ask her, Why didn’t’ you tell the police, and she says, I’m too scared, and I say, Have you even told you [sic] mum, anybody, and she said, No, and I said, How long have you been keeping this for, [C] and she says, About a year, and I asked her how many times has he done it to you, and she said, More than five times, and then I, we go
back to class and I just feel really worried and stuff and I can’t concentrate for the rest of the day and, yeah, that’s all that happened.
Consequently, despite the lack of express reference to the charges 5 and 6 events, there was reference to a multiplicity of occasions in addition to the night of the birthday party.
It is also to be observed that, although the emphasis was certainly on the charges 1 to 4 events, that was hardly surprising in a context where, as C told the police in the VARE, the reason she complained to F was because F had seen something of what happened at the time of the charges 1 to 4 events and so would be likely to believe her:
Q 269: OK. Who is the first person you told about this? --- [F].
Q 270: And who’s [F].---[F] is one of my friends, and she hasn’t always been my friend. We actually normally don’t get along very well, but the reason I told her is because one night at [D’s] party we had a sleepover and it happened again, and I started crying and I said, [the applicant], stop it, I, I’m sick of it, or I’ll call the police, and [F] heard me say, I’ll tell the police, and straight away she knew something was wrong. So she’s known it for ages now, and so I thought that , if I’m going to tell someone, she would be the only person that would believe me, because has evidence that it’s true, and that I wouldn’t be lying, because it’s my best friend’s dad, so, yeah. So I asked her if she would tell her mum, and she told her mum, and she called the police.
(ii) No reference to charges 1 to 4 events in first disclosure interview
The second matter identified by counsel as casting doubt on C’s credit was a suggestion that there was no reference to the charges 1 to 4 events in the notes of the first disclosure interview conducted by Detective Senior Constable Bieser. Counsel based the submission on the following passage of the cross-examination of Detective Bieser:
There were allegations raised in that VARE interview about the conduct of [the applicant] sexually interfering with [C] on the night of [D’s] party. Is that right? --- That’s correct.
And you hadn’t been made aware of those during the disclosure interview, had you? --- No.
I do not think there to be much substance in that criticism either. As was established in re-examination, in fact C did tell Detective Bieser that there was other offending apart from the charges 5 and 6 offences and it was only because of need to get C medically examined within 72 hours of the latter offences that Detective Bieser did not pause to interrogate C about the earlier offending at that stage:
Detective, you’ll recall on Friday afternoon you were asked several questions about the disclosure interview? --- Monday afternoon. That’s correct.
Sorry, Monday afternoon. Now, I want to ask you, you’ve taken notes of various things that were said to you by [C]. Is that correct? --- That’s correct.
You’ve then noted at the end of those questions, ‘First time start of this year’. Now, is that correct that you did make a note of, ‘First time start of this year’? --- That’s correct.
As I understand it, you have no recollection as to what that is referable to. Is that right? --- No, I don’t.
…
So it would appear from these notes that at that point you stopped taking any further notes. Do you agree with that? --- Yes, I do agree with that.
To you own way of thinking, why did you at that point stop taking notes and then, as I understand it, immediately send [C] to the Children’s Hospital? --- I believe I stopped taking notes because in my mind she has told me that there’s other offences there, and because there’s other offences there I know that I have to speak to her at a later stage. I didn’t want to continue speaking with her at that point in time. I knew when the last offence was and I’m bound by protocols to get the complainant to a forensic medical officer within 72 hours. At that point of time, I knew that I was on the cusp of that 72 hours and that’s why I stopped…
(iii) Other deficiencies in version of events given in disclosure interview
The third matter identified by counsel as casting doubt on C’s credibility was that there was no mention of the charge 5 events in the notes of the disclosure interview, and that C made allegations concerning charge 6 which she later retracted. The submission was based on the following passage of cross-examination of Detective Bieser on her notes of the first disclosure interview:
Is that what [C] was telling you? --- That is, yes.
‘Stayed at [D’s] friend’s house for a while as they had new bunnies.’ Is that right? --- Yes.
‘Went back to [D’s] house.’ Is that right? --- Yes.
‘Had dinner’? --- Yes.
‘Watched another movie’? --- That’s correct.
‘Went to bed’? --- Yes.
If I just pause there, I take it that it would be safe to assume [C] didn’t make any mention to you of an allegation she was out in the lounge room on the couch and had her vagina licked in this disclosure interview’? --- Not on this occasion, no.
Now resuming back where your notes reveal what [C] said to you, the next entry I understand is this, ‘Set up mattress on floor next to [D’s] bed.’ Is that correct? --- That’s correct.
‘Fell asleep’? --- Yes.
‘Woke up in the middle of the night’? --- Yes.
And then the next entry, ‘Her dad was there.’ Is that right? --- Yes.
‘He started touching me’? --- That’s right.
‘Touched me everywhere’? --- Yes.
‘He pulled and pushed me’? --- Yes.
‘Held on to my arm. Held on to me’? --- Yes.
And then you’ve got a dash there and then the word[s] ’my arms’? --- That’s correct.
‘Kissing my neck’? --- Yes.
‘Touched my breasts. Started sucking.’ Is that correct? --- That’s correct.
‘Rubbing my tummy’? --- That’s correct.
‘Touched vagina’? --- Yes.
‘Touched it with his tongue’? --- Yes.
‘Started rubbing inside’? --- That’s correct.
‘Stick his fingers up my vagina’? --- Yes.
‘He got my hand’? --- Yes
‘Rubbing it on his penis’? --- Yes.
‘I tried to leg go’? Yes.
‘But he wouldn’t let me’? --- That’s correct.
‘He kept grabbing my hand’? --- Yes.
And you’ve then got the abbreviation ‘I/S’. Does that stand for ‘inside’? --- Yes, it does.
So the entry is, ‘Inside my clothes.’ Is that right? --- That’s correct.
The next entry, ‘Told him to stop it’? --- Yes.
‘He just kept going.’ --- That’s correct.
‘[D] lying next to me asleep’? --- Yes.
‘He thought I liked it’? --- Yes.
And then, ‘I said’? --- That’s correct.
‘I said, “Stop it.”’ Is that right? --- Yes.
‘He said, “I thought you liked it”’? --- Yes
‘I said, “No. Stop it”’? --- That’s correct.
All right. They’re accurate notes of the conversation as you spoke to [C] are they? --- Yes, they are.
Counsel argued that it seriously impinged on C’s credit that she did not mention the charge 5 events at the time of the initial disclosure interview or, after the disclosure interview, maintain her allegations that, at the time of committing the offence the subject of charge 6, the applicant also touched C everywhere; pulled her and pushed her; held on to her arms; kissed her neck; touched and sucked her breasts; rubbed her tummy; and grabbed her hand and held it on his penis.
There is some force in that submission. The failure to mention the charge 5 offence and the failure to maintain allegations of other offending did reflect adversely on C’s credit and might have informed the jury’s conclusion that there was a reasonable doubt that the applicant was guilty of charges 5 and 6. It is, however, another question, with which I shall deal later in these reasons, whether the jury should have been so influenced by those factors, either alone or in conjunction with others, as to be bound to have a reasonable doubt that the applicant was guilty of charges 1 to 4.
(iv)Variations in time at which leggings said to have been pulled down and how encounter ended
The fourth matter relied on by counsel as casting doubt on C’s credibility was what he said were the differences between things which C had said on different occasions during the VARE and in cross-examination during the special hearing as to the point during the events comprising charges 1 to 4 at which the applicant pulled down her leggings. In the VARE, C said this:
Q 327: OK. And describe to me how he put his fingers inside your vagina.
Q 328: I need you to tell me. --- So he just, he, he put , ‘cause I was wearing leggings, he pulled my leggings all the way down as well again, and he just stuck it up and just started twisting it and doing all that stuff.
…
Q 369: And where were you, what were you wearing: --- I was wearing leggings and a T-shirt, I’m not sure which T-shirt it was but I was wearing a T-shirt.
Q 370: OK. And if you’re in those, how can he lick your vagina? --- He pulled then down to my feet, as I said before - - -
Q 371: Mm’hm. - - - and the sleeping bag was over them.
In contrast, in cross-examination, C said this:
Do you remember what you were wearing at this time? --- I was wearing leggings and a T-shirt. I can’t remember what T-shirt.
You had worn those leggings to bed? --- Yes.
And those leggings, you were wearing them in the normal position, pulled up and that sort of thing, when you went to bed? --- Yes. Of course.
When you say that [the applicant] woke you up were your leggings pulled up? --- I can’t remember.
Are you saying that your leggings stayed up, or did they come down? --- They did come down, but I can’t remember at what point.
How did they come down? --- He pulled them down.
How did he do that? --- With his hands.
Yes, but you say that they were up? --- Yeah.
And he used his hands. Both hands? --- Yeah.
Soon after you woke up, or was that a later stage that he takes your leggings down? --- When I was — when I woke up I had no leggings. Like, my leggings had been pulled down.
So your leggings were actually down? --- Yes.
They had been taken down by the time you woke up? --- Yes.
By the time you woke up your legging were down? --- He was pulling them down as I woke up, so - - -
Pulling them down? --- At — I — I’m pretty sure he had one hand with my hand, and he was pulling them down with one hand.
HER HONOUR: Sorry. Just pause.
COUNSEL: All right. So when you say that you woke up in the night with [the applicant], and he was holding your hand and putting it on his penis and making your hand rub it, we can also say that he was also taking your leggings down at the same time, can we? --- He had my hand, and it was resting on his penis — it wasn’t rubbing — as he was pulling down my — pants, and then, once he had pulled down my pants he started rubbing.
So he was taking down your pants, or your leggings — when you say ‘pants’ you mean leggings - - - ? --- Yes.
Or are they some[thing] different? --- Leggings. Sorry.
I’m not seeking to confuse you? --- M’mm.
If you’re wearing pants, as well as leggings, please say so? --- I was wearing leggings and underwear.
Yes, but I’m not seeking to confuse you. If you’re referring to a different garment, please say so? --- Thank you.
Now you say that he was taking your leggings down at the time you woke up? --- Yeah. I had my hand on his penis and was pulling down my leggings.
That’s not what you said to the police officer when you were interviewed in May though, was it? --- No.
Why didn’t you tell the police officer in May that? --- I did tell them that my pants had been pulled down.
Yes, you did, but you didn’t tell the police officer in May that your pants were pulled down at the time when you were first woken up, did you? --- No.
In fact, you said that ‘he pulled my leggings all the way down as well again, he just stuck it up — he just started twisting it and doing all that stuff’. You seem to be suggesting in your answer that your leggings were taken down at some time before, as you allege, fingers were put into your vagina.
HER HONOUR: Do you understand that, and do you agree with it? It was a very long question. Did you understand it?
COUNSEL: Yes? --- No, I don’t understand it.
HER HONOUR: No.
COUNSEL: No. I will put it again. When you were talking to the police you seemed to be saying that your leggings were being taken down at a later stage than what you’re telling us today.
HER HONOUR: So stop there. Do you agree that that’s what you were trying to tell the police? --- Yes.
Very well.
COUNSEL: They both can’t be right, can they? --- No.
Which one is right? --- I can’t remember. I’m — I don’t know.
Plainly enough there are some differences and, therefore, the jury might possibly have regarded what is set out above as an important piece of cross-examination. It is, however, not as significant as may first appear once it is recalled that C was only 14 at the time of cross-examination and only 12 at the time of the events in issue. Moreover, even taken at its highest, it goes no further than that, when interviewed by police, C was not asked and did not say at what stage of the proceedings her leggings were taken down. When first asked in cross-examination at the special hearing, she said that she could not recall. Later, in the course of cross-examination, she was pushed to define the time with precision, and she attempted to do so. But, once the difficulties with her attempt were pointed out to her, she retreated to her original position that she could not remember the point at which it occurred.
Counsel for the applicant further contrasted the differences between what C said in the VARE and what she said in cross-examination at the special hearing as to the way in which the charges 1 to 4 encounter concluded. In the VARE, C said that the applicant lost interest and ‘just went off’ and she fell asleep; whereas, in cross-examination, C said that she fell asleep ‘while he was still there’. Thus in the VARE:
Q 190: OK. So you’ve just told me that [the applicant] had his fingers inside your vagina. --- Yes.
Q 191: Tell me what happened then. --- Well, I don’t know what happened. He just stopped and just went off, like, he lost interest or something. I’ve got no idea, but, yeah.
Q 192: OK. Did you say anything to him? --- No, but I was practically, like, half asleep, so, yeah.
Q 193: Did he say anything to you? --- No.
Q 194: What happened after that? --- He just left and I fell asleep.
In contrast, in cross-examination:
That’s what you say. And then you had this massive argument, and then you say he leaves the room, and then you go back to sleep, do you? --- I ended up ignoring him in the time he was there and fell asleep while he was still there.
You fall asleep while he’s still there? --- That’s what I said, yes.
Yes. Did you say to Senior Constable Bieser that, ‘I ignored him whilst he was there and fell asleep whilst he was still — whilst he was still there’? --- I can’t remember.
What you said is this — 280, you Honour. (To witness) ‘So he went off and I just went back to sleep.’ Nothing there about falling asleep whilst he was still there, is there? --- No, there is not.
In fact, the opposite. ‘So he went off and I just went back to sleep.’ Isn’t it? --- Pardon.
Do you agree that this — what you said to the police that, ‘He went off, and I just went back to sleep’ is different from what you’ve just said. You said that he went to — that you went to sleep whilst he was still there? --- Yes.
HER HONOUR: So you’re agreeing that they’re different things, [C]? --- Yes, I am.
Very well.
There is some force in that criticism, too. It is troubling that C did not recall the way in which the encounter concluded. But, at the same time, given what was involved and the circumstances in which it occurred — which is to say a 12 year old pre-pubescent girl being woken from her sleep by a man whom she regarded as a father figure committing sexual offences against her — it is hardly incredible that she could not recall with precision the exact sequence of events or that she offered different versions of the peripheral details at different points of time. As the prosecutor submitted to the jury in final address, on any view of the matter the charges 1 to 4 offences amounted to a most traumatic event for C and it was likely to have been productive of a level of shock and dismay no less than would be caused by a major motor accident. In such circumstances, one’s recall of the exact sequence of events — and particularly the recall of a 12 year old pre-pubescent school girl — tends to be hazy, and yet there is no doubt that one has the clearest recall of the instant of impact; or, in this case, of the indecent acts alleged.
(v) Change in version of events relating to charges 5 and 6
Finally, on this aspect of the matter, counsel drew attention to the differences between the version of events which C gave in her first VARE and the version she gave in the second VARE concerning the lead up to the offences the subject of charges 5 and 6, and to what she said in cross-examination at the special hearing about the differences between them.
In the first VARE she said this:
Q 74: OK. You said that, I want to take you back to where you went to get water. You told me you went to get water. ---Yes, I went to get a glass of water to drink, like I normally do before bed, and then [the applicant] grabbed me and he put me down on the couch this size on my back, and started licking my bottom part.
Q 75: OK. So tell me where you went to get water. --- From the kitchen sink.
Q 76: OK. And I want to take you back again to where he’s grabbed you. Tell me everything, from the start to the finish, about how he grabbed you and where he grabbed you. ---Well, he really just, it was more of , like, like, chase thing, not exactly like a grab, pick you up and throw you there. It was more of, like, a really, like, chase you and then push you over and, yeah, but it wasn’t very much of a big push. It was just a little knock.
Q 77: OK. And I’m a little bit confused by that, so what I need you to do is tell me more about that. I wasn’t there, so I need you to be able to tell me so that I can understand. ---Mm’hm.
Q 78: So you can tell me again. You’ve gone to the kitchen. --- Yes, to get a glass of water.
Q 79: You’ve got some water, yep, and - - - And then I drink the water and put it down, and then he kind of chases me into the living room and kind of knocks me over.
Q 80: OK. Can you describe that to me more, about chasing you and then knocking you over? --- Well, so he kind of knocked me over so I was on all fours, and then I tried to run away like that, ‘cause I just didn’t have the time to get up, and then he kind of just picked me up and put me down on the couch and said, Wait, I have to check something and I tried to push him away but he just didn’t stop.
Q 81: OK. Where were you when you’ve been pushed down? I was in the living room, so the lounge room, near the, not the kitchen, the eating area. So they’ve got the big table and then chairs, and then they‘ve got two couches, and then they’ve got a Mac there which they watch movies on. So he pushed me down over in front, onto the carpet in front of the Mac.
Q 82: OK. Tell me how he pushed you down. --- Yeah, well, it was just, like, a little trip with the, like yeah, but didn’t hurt or anything.
Q 83: Sorry, I didn’t get that. --- It was, like, little, it was like tripping someone so, yeah, but didn’t hurt, so - - -
Q 84: OK. Can you explain how he tripped you? --- Well, he just kind of, like, stuck his foot out and I tripped over, ‘cause I wasn’t looking where I was going, obviously, ‘cause I just wanted to get away. So, yeah, and he tripped me over, so I landed on all fours. Didn’t hurt myself, luckily, and I just tried to get away and, yeah, then he just grabbed me and put me onto, yeah.
…
Q 246: OK. From the glass of water? --- Yes, [the applicant] kind of chased me into the lounge room and tripped me over so I was on my all fours, and I tried to run off like that and he kind of grabbed me by hips and put me on the chair and pushed my legs backwards so I had my pants in front of my face, and he stated licking my vagina.
In the second VARE, C said this:
Q 16: [C], tell me why you’re here today. Something I said in the last video wasn’t entirely correct.
Q 17: OK. And tell me about that from the start to the finish without leaving anything out - - - What wasn’t on the day - - -
Q 18: Correct. --- Oh, from just, oh - - -
Q 19: Yes, the --- Could I check my - - -
Q 20: Sorry? --- Could I check my script thing just to find the spot?
Q 21: OK: --- Just so I’m right.
Q 22: I’m handing [C] a copy of the transcript of the first VARE dated the 24th of May 2011.--- OK, OK. Here, that one. So in my last video, I said, Well, he kind of knocked me over and I was on all fours, then I tried to run away like that. That part of it’s not true. I don’t remember that happening. What I think happened is, what I’m pretty sure happened is that he more kind of, like, if, if you tell someone something and they’re heading off and you kind of just, like, grab them, just so you can kind of catch them in time to do what you need to do or tell them something, kind of like that, and led me to the chair.
Q 23: OK. I need you to tell me in a bit more detail because I’m finding that - - - Yep.
Q 24: - - - hard to understand what you’re telling me. OK. What part, just - - -
Q 25: About walking, you were telling me something walking away - - - Righto.
Q 26: I don’t understand how he, he held you, grabbed you or whatever - - - OK.
Q 27: - - - it is. --- So after I gave him the drink [sic] I went to walk back off to the bedroom and he grabbed me kind of by the shoulder, like, waist, kind of, and kind of, like, kind of pulled, like, kind of leaded me [sic] into the, into the lounge room and sat me down on the chair.
Q 28: OK. You’re telling me that he’s got you by the shoulder, waist area? --- Yeah.
Q 29: I’m a bit, I’m not understanding that, sorry. --- Kind of - - -
Q 30: Show me how or explain to me how he did that. Was that with his hands? --- It was his hand, yeah, like, kind of from behind, kind of, by the shoulder. I can’t remember, like, as if he wanted to go, like, away or something, blah blah blah blah blah, yeah.
…
Q 34: OK, And I’m just going to repeat it to make sure that I understand it. ---Yep.
…
Q 36: Where did you get the drink from? --- The kitchen.
Q 37: The kitchen. And then you’ve walked away. Is that correct?---I was about to walk away, then he grabbed me, like, not roughly, just kind of, like, in a friendly kind of way as you would do to a friend if you were telling them something and they were heading off somewhere, like, to kind of stop them.
…
Q 41: And you said that it got part of your arm, your waist, your shoulder, your waist: --- Well, kind of, like, from arm and, like, like, the rest of his arm rests on, kind of against my back.
Q 42: OK. and then he’s led you away? --- Kind of led off in the direction.
…
Q 47: OK. So the part of your statement that you want to change is about being chased? --- Being chased and being on all fours.
Q 48: OK. So where, tell me if you were chased or not? --- No, I was not. Well, I might have been. I honestly can’t remember but I don’t, I, it would have been like a full-on, like — (clears throat) sorry — like, running around in circles or anything.
Q 49: OK. You all right? --- Yep — (clears throat) OK.
Q 50: And tell me about being on all fours. What do you mean? Well, that’s not true either, or it’s not right …..
…
Q 55: OK. So in your first statement, you’ve got that he chased you. He pushed you. Is that correct? I don’t know.
Q 56: No, it’s not in there, sorry.---Oh - - -
Q 57: He’s chased you. You’ve ended up on all fours. --- Yeah, oh, he tripped me.
Q 58: Tripped you, sorry, that’s right, tripped you and you ended up on all fours. At any stage were you tripped?--- Not that I can recall.
Q 59: OK. At any stage were you chased? --- I don’t know, I might have been.
Q 60: OK. Can you remember if you were or not? --- No…..
Q 61: OK. At any time did you end up on all fours? --- No. That’s definitely not right.
…
Q 68: Excellent, thank you. Why, tell me why your recollection has changed? --- What do you - - -
Q 69: Tell me why your memory of what has happened - - - I don’t know. I think just watching it again made me realise that maybe that — (clears throat) — I just need a drink. Haven’t had breakfast, so - - -
Q 70: OK. --- I dunno. I guess just getting back and, made me think of it, that maybe some of that stuff didn’t happen. Maybe I just said it to cover up ‘cause maybe I was embarrassed or I just didn’t, like, I didn’t know, maybe there, like, maybe I thought there was a right answer and there was a wrong answer or something. I don’t know. It’s all so long ago. Don’t know what I was thinking.
In cross-examination at the special hearing, C gave the following evidence about the changes:
No. Now, when you were interviewed for the second time, on 23 April 2013, you were asked this — 68 to 70, your Honour — ‘Tell me why your recollection has changed.’ ‘What do you — ‘ Next question: ‘Tell me why your memory of what has happened — ‘ and your answer, ‘I don’t know. I think just watching it again made me realise that maybe that — ‘and the next question, ‘OK.’ And then this: ‘I dunno. I guess just getting back and — made me think of it, that maybe some of that stuff didn’t happen. Maybe I just said it to cover up, because maybe I was embarrassed, or I just didn’t like — I didn’t now. Maybe there — like, maybe I thought there was a right answer and there was a wrong answer or something. I don’t know. It’s all so long ago. Don’t know that I was thinking’. Do you remember giving that answer? --- yes, I do.
And were you being truthful when you gave that answer? --- Yes, I was.
So when you said, ‘Maybe I thought there was a right answer, and maybe there was as [sic] wrong answer or something. I don’t know. I don’t know what I was thinking’, does that mean that you were just giving the answer that you thought was expected of you? --- No.
Does it mean that you thought that there was a right answer and there was a wrong answer? --- Sorry. Can you repeat that?
All right. What do you mean by ‘Maybe I thought there was a right answer, and there was a wrong answer’? --- I don’t know. Maybe I — I — I don’t know how to explain it. I know what I’m trying to say; I just can’t - - -
HER HONOUR: Then just take a minute, [C]. It’s important. Try to explain it?---Maybe I thought that, like it would make myself look bad, or — I don’t know. Just - - -
What do you mean, make yourself look bad? --- Like, I didn’t want it — I guess, maybe I said that because I didn’t want to like — I didn’t want it to, like, sound like it was my fault, like — yeah.
…
How can we tell which of your answers, [C] — you say that maybe some of that stuff didn’t happen? --- Because I corrected what I said didn’t happen and I was telling the truth when I corrected it.
…
So when you say ‘right answer’ and ‘wrong answer’, is it the fact that in your first interview you weren’t telling the truth, were you? --- I was telling the truth except for those parts that I changed.
None of what’s in your first interview about what you said [the applicant] did to you — none of it’s the truth, is it? --- It’s all the truth, except for the parts that I changed, which I was very truthful about changing them.
See, in your first version of what you said, where you say that [the applicant] dragged you (indistinct) — where you say that he chased you, and they you say that he knocked you over — is that right? --- Yes.
That didn’t happen, did it? --- No, it didn’t.
And the on all fours? --- That didn’t happen.
That didn’t happen. That he kind of picked you up and put you down on the couch? --- No.
That didn’t’ happen — No.
You were never on all fours? --- No.
Your jeans were never forced down to down to your ankles. That didn’t - - -? --- My jeans were forced down to my ankles.
That didn’t happen, did it? --- It did.
There was no licking of your vagina. That didn’t happen, did it? --- It did.
On the version that you gave what might be described as your second version, [the applicant] didn’t grab you and lead you to the couch area, did he?--- He did. He did grab me and he did lead me, but not in an aggressive kind of grab.
He didn’t pull your legs apart, did he? --- He did.
He didn’t lick your vagina? --- He did.
You didn’t tell him to stop, as you say ---? --- I didn’t.
Didn’t. But there was nothing happening to tell him to stop. Nothing was happening was it, [C]? --- No, I was completely in shock mode. I didn’t know what to do. I just stopped. I couldn’t do anything.
In counsel’s submission, the variations between the versions given in the two VARE’s were so extensive, and the explanation given for the variations was so improbable, that the jury should have had the gravest doubts about those aspects of C’s allegations concerning charges 5 and 6 which C maintained were true, and thus also generally about C’s veracity.
I acknowledge the force of that submission. The differences between the two versions of events are significant and prone to raise doubts about C’s credibility and reliability. As has been noticed, it may be that which informed the jury’s conclusion that the applicant was not shown beyond reasonable doubt to be guilty of charges 5 and 6. As will be explained later, however, it does not follow that any such doubts compelled the jury to conclude that there was a reasonable doubt about the applicant’s guilt of charges 1 to 4. For, apart from anything else, the variations were limited to facts surrounding the offences — the complainant was consistent in her allegations about the offences themselves — and the jury might not have thought it improbable that a 12 year old school girl should embellish surrounding facts due to fear of being criticized for failing to resist the offending as vigorously as possible.
(vi) Implausibility of allegations
Finally, counsel for the applicant identified what he said was the implausibility of critical aspects of the evidence. Beginning with charges 1 to 4, he submitted it was unlikely to the point of incredible to suppose that the applicant would risk offending when F was lying on a mattress less than a metre away and W and the adult student, A, were sleeping in rooms close by. It was also significant, he submitted, that, in a house as small and prone to the conduct of sound as the applicant’s home, both W, who deposed that she was awake for quite a while that night, and A gave evidence that they did not hear anything untoward. Further, in counsel’s submission, it was remarkable to the point of unbelievable that, if the offending had occurred, C did not complain forthwith to F and W and A. Instead, on her evidence, she went back to sleep and the next morning behaved as if nothing had happened. Thereafter, she continued to visit the applicant’s home on a more or less daily basis; on the following weekend, she went there again to stay for another sleepover; and, during the following month, she went on a holiday with the applicant and his family to Beechworth. In counsel’s submission, it is incredible that C would have behaved in that fashion if she had been subjected to offending of the kind alleged in charges 1 to 4.
Similar considerations were said to apply to charges 5 and 6. It was impossible to imagine the applicant taking the risk of offending in the sitting room while D and W and A were all close by in other rooms and thus likely to come in on the offending at any time. It was improbable to the point of unbelievable that C would return to D’s bedroom, as she did, and commence to laugh and giggle with D, as A deposed she heard her do, if C had just been subjected to offending of the kind alleged in charge 5. It rendered it even more improbable that the charges 5 and 6 offending was committed that, according to A’s evidence, the next morning C sat on the applicant’s lap and played chess with him. In counsel’s submission, the doubt so cast on the veracity of charges 5 and 6 reflected back upon and substantially undermined C’s credibility on charges 1 to 4.
Equally, as counsel would have it, there were grave doubts about the credibility of F’s testimony in relation to charges 1 to 4 that she heard C tell the applicant to stop it and that she could call the police. That evidence was given in F’s VARE as follows:
Q 7: Excellent. Very good. What you tell me today is really important. --- Well, my friend [C], she came to me on Monday of this week and she told me that she was raped by one of my friends, [D’s] dad and I was really shocked. But one night I went over to a friend’s, her house for a sleepover and I woke up in the middle of the night and [D] wasn’t there and [D’s] dad [the applicant] was there lying next to [C] and I asked him, Why are lying next to [C] and where is [D], and he said, [D] couldn’t sleep, so I put her back in her room and [C] couldn’t sleep so I’m patting her to sleep, and I wasn’t worried, because I didn’t think anything bad was happening, so I fell back asleep. I woke up again. I hear [C] say, Help. Get off me. I can call the police, you know, and in the morning I ask her, [C], why did you say this and why did you say you could tell the police, and she said, Don’t worry, [F], and she just walks off.
…
Q 31: And tell me everything from the time you woke up to the time you went back to sleep that first time. Tell me everything from the start to the finish that you saw or heard. Well, I woke up and I saw [the applicant] lying next to [C] and I asked him, Why are you next to [C] and where is [D], and he said, Well, [D] couldn’t sleep and [C] couldn’t sleep either, so he put [D] back in, he said he put [D] back in her bed and he said he was just patting [C] to sleep and then I just fell back asleep thinking it wouldn’t really matter what it was because it was just, I wouldn’t, I didn’t know that anything was really happening, so ---
…
Q 33: OK. So I’m going to take you back to when you saw [the applicant], lying next to [C]. Tell me about where he was and where [C] was. --- Well, [C] was, well, he was lying across two mattresses, well, like one of the mattresses and he was right next to [C], like, really, really closely. But that’s all really I know.
…
Q 35: OK. And how as [C] lying? --- She was lying on her back, but, yeah, it looked like he was trying to move her legs or something. I don’t know.
Q 36: And why do you say that? --- I’m not sure. I just, that’s really all I remember.
Q 37: OK. And why do you thing he was trying to move her legs? --- I don’t know.
Q 38: Is that something you’ve been told or is that something that you saw.
--- That’s something I saw.
…
Q 54: And when you woke up again, tell me everything that you heard and saw from the start to the finish before you went back to sleep. ---Well, I woke up, I heard [C] say, I’m not quite sure, but I think she said, Stop, something else, but I couldn’t quite make out what she said, and then, I can call the police, you know and that’s all I remember, and he, like, I don’t know if he was saying OK, OK, or, he was mumbling. I couldn’t hear what he said.
Q 55: OK. And what did you do then? --- I said, [C] what’s wrong, and she said, [F], don’t worry, and I didn’t worry, because I didn’t think anything that bad would happen - - -
Q 56: Mm’hm. - - - and so I wake up in the morning, of course again wake up in the morning and I asked [C], [C], why did you say, Stop, and I can call the police, you know, and she said, [F], don’t worry, it’s nothing, and so I don’t worry, I forget about it and she tells me Monday and that’s when I, and that‘s when she tells me.
Q 57: OK. On that day or that night that you were staying at [D’s] and you saw [the applicant] lying next to [C], tell me what [the applicant] was wearing.---I couldn’t see him and I couldn’t see, I could only see his head. He was wearing a shirt, but I didn’t know if he was wearing pants or not.
Q58: OK. So what part of his body did you see? --- I saw him from his , right here up.
Q 59: OK. And how could you see that? --- Because he was, I’m not sure. I could just, he was kind of sitting up a bit, like, up, and it was just about starting to get lighter outside, so I could see him a bit.
F was cross-examined on those matters at the special hearing, thus:
In relation to you going back to — sorry. You’ve told us you heard a conversation, or you had a conversation with [the applicant] at that stage; is that right? --- Yes.
One of the things that you say that [the applicant] said to you was, ‘[D] couldn’t sleep, so I put her back in her room’. That was correct, wasn’t it? --- Yes.
See [the applicant] denies that he spoke to you at any stage on that night, and what I’m suggesting to you is that there was no conversation with you and [the applicant], was there, [F]? --- I believe 100 per cent that I spoke to [the applicant].
…
Is the answer — the question that I was directly putting to you was that you weren’t troubled by anything you saw or heard because you were able to go back to sleep. Do you agree with that?
HER HONOUR: At that stage, [F}? --- At that stage pretty much, yes.
…
Now when you spoke to the police and you gave your version of events, you told the police that you heard these words: ‘I heard [C] say, ‘Help, get off me’. That’s what you told the police when you were interviewed, didn’t you? --- Yes.
But you didn’t, in fact, hear those words, did you, [F]? --- No.
No. And in relation to that — what you told the police about hearing those words was wrong, wasn’t it? --- Yes.
And what you told the police about hearing those words wasn’t truthful, was it? --- I guess not.
In relation to — let me put his proposition to you, [F]. You gave different versions to the police — I will withdraw that. You told the police something that wasn’t true about hearing ’Help, get off me’ because you were making up that you overheard a conversation between [C] and [the applicant], weren’t you? --- I wasn’t making it up. I just remember it may differently or said something incorrect.
And I suggest to you the — that whilst [the applicant] was lying in the lounge, he was never lying really close to [C], was he? --- No, I remember him right next to [C].
And I suggest to you that there never was a conversation between you and [C] in the lounge room that night where you said to [C] words to the effect of, ‘What’s wrong’ was there? --- No. I remember that perfectly.
Well, do you say [the applicant] was present for that conversation or do you say that he’d left by that stage? --- No he was next to [C] still.
F was then re-examined in this way:
Now, you were asked a question about something that you said in … answer to question 7 of your video, the words ‘Help, get off me.’ Now earlier you corrected the word ‘Help’. Did you or did you not hear the words, ‘Get off me’? --- I said — I think I corrected myself, that she was mumbling and I couldn’t quite work out what she said there.
Contrary in part, however, to counsel’s submissions, it seems to me that the net result of all that was really no more than that, while F could not say whether she heard C say, ‘Stop get off me’, her evidence that she heard C say’ I can call the police, you know’ was not challenged or otherwise contradicted.
The effect of the identified deficiencies in the evidence
In the result, despite the criticisms levelled at C’s testimony and despite such doubts about aspects of her evidence as they entail, I do not consider that the jury were bound to reject C’s testimony on critical facts pertaining to charges 1 to 4. All things considered, I am not persuaded that that there was a solid obstacle blocking the jury’s path to finding that the applicant was guilty of charges 1 to 4.
For the reasons earlier given, I do not think there to be a great deal of substance in the criticisms made of C’s complaint to F and C’s first disclosure interview. As was earlier remarked, C told F that there were occasions other than the night of the sleepover when the applicant assaulted her and, as was established in the re-examination of Detective Bieser, C did tell her of other offences during the first disclosure interview. It was just that Detective Bieser did not take notes of them or recollect the details because her concern was to get C to the Children’s Hospital without delay.
C’s apparent uncertainty as to the precise point at which the applicant pulled down her leggings, and her equivocation as to how the charges 1 to 4 encounter came to an end, are perhaps more troubling. But, for the reasons earlier stated, it was open to the jury to conclude that, despite C’s inability to recall the precise sequence of events and all the details on which she was cross-examined, she had an accurate recall of the indecent acts alleged.
The problems concerning C’s evidence in relation to charges 5 and 6 are in some respects also troubling and it is possibly for that reason the jury failed to convict the applicant of those charges. But, equally as I have said, it is not without significance that the allegations which C made in her first VARE in relation to those charges and then later withdrew in her second VARE were to do with peripheral facts as opposed to core allegations. It is also not illogical to posit that C exaggerated the surrounding facts for fear of being doubted or regarded as having encouraged the offending.[6]
[6]BCM v R (2013) 303 ALR 387, 395 [45].
That leads to the question of whether the fact of C being found to have exaggerated in relation to charges 5 and 6 so much affected her credit as to preclude the jury accepting her evidence in relation to charges 1 to 4.
Certainly, the fact that C was shown to have made false statements about charges 5 and 6 was relevant to the jury’s assessment of whether she was telling the truth about charges 1 to 4. But, as I have noted, it does not follow that, because the jury may have had doubts about some of C’s evidence concerning charges 5 and 6, they were bound to reject C’s evidence on charges 1 to 4.[7] To the contrary, they were properly directed and presumably proceeded on the basis that they were to decide each of the charges separately and that it was open to them to accept parts of a witness’s evidence while rejecting other parts.[8] It also does not follow from the fact that the jury were unable to reach a verdict on charges 5 and 6 that they rejected C’s evidence on the essential facts comprising those charges. As was earlier noticed, it is not unreasonable to suppose that the jury may have treated C’s exaggeration of the facts surrounding charges 5 and 6 as manifestations of a childish fear that she might be thought complicit in the offending, and so as something which did not necessarily detract from her credibility concerning the core facts relating to those charges. If so, the jury’s failure to reach a verdict on charges 5 and 6 may mean no more than that they were not prepared to find guilt beyond reasonable doubt without supporting evidence; and in the case of charges 5 and 6 there was no supporting evidence.
[7]Cf R v Markuleski (2001) 52 NSWLR 82, 99 [66] (Spigelman CJ); not followed in R v Trainor [2003] VSCA 200.
[8]MFA v The Queen (2002) 213 CLR 606, 617 [34].
In contrast, in the case of charges 1 to 4, there was supporting evidence. It included F’s testimony as to the applicant lying close to C; the applicant’s statement to F that he was patting C to sleep; and F’s uncontradicted testimony that she heard C say that she could call the police. Bearing in mind that the applicant denied any physical contact with C of a kind that could possibly have had sexual overtones, the jury might well have regarded F’s evidence as far more significant than any inconsistencies or recantations in C’s version of events concerning charges 5 and 6. To adopt and adapt the observations of Gleeson CJ and, Hayne and Callinan JJ in MFA v The Queen,[9] in the jury’s assessment of the witnesses, which would have been influenced by the witnesses’ respective ages and degrees of maturity, the jury could reasonably have considered that F provided strong support for the complainant's position on the fundamental point of conflict between C and the applicant, and that the reliability of C's evidence as to the detail of what occurred was not significantly diminished by the discrepancies and recantations in relation to other charges.
[9]Ibid [28].
It remains to deal with what counsel for the applicant characterised as the inherent implausibility of C’s allegations in view of the physical circumstances in which the offences were alleged to have been committed and the exemplary previous good character of the applicant.
Plainly enough, each of those matters was a relevant consideration. Ultimately, however, they were matters for the jury to assess. I am not persuaded that their conclusion is suspect. As experience shows, sexual offences are routinely committed by people of otherwise good character in circumstances which are likely expose them to a high risk of detection. Equally, the fact that a child subjected to sexual abuse may continue to act towards the culprit in a manner which belies the commission of the offending is hardly a novel circumstance. The fact that no one in the house apart from F heard anything untoward is also unremarkable; for, apart from a muffled threat to call the police, what was there to be heard? All of these things were well within the competence of the jury to determine.
Accordingly, I would dismiss the appeal against conviction.
Application for leave to appeal against sentence
The application for leave to appeal against sentence is put on the sole ground that the judge failed to take delay into account as a mitigating factor. Counsel for the applicant contended that the delay of some 16 months between when the matter was first reported to police on 23 May 2011 and when charges were laid on 30 September 2012 was an undue delay for which he was not responsible. Counsel also relied on evidence which was before the sentencing judge that the delay was productive of anxiety and stress, some level of social ostracism, including verbal attacks and bullying of the applicant’s children, exposure to vigilante acts of violence and general detrimental impact on the applicant’s quality of life. Yet, despite the fact that defence counsel made detailed submissions to that effect on the plea, to which the prosecutor responded, there is no reference to the effects of delay in the judge’s sentencing remarks or, in counsel’s submission, in the sentence imposed. On that basis, it is contended that it is to be inferred the judge failed to take the effects of delay into account.
The Crown argues to the contrary, that the judge did take delay into account. Counsel for the Crown submitted that the relevance of delay depends on its effects;[10] and here, the effects of delay which were relied upon in mitigation of penalty were the stress to which the applicant had been subjected. In her sentencing remarks, the judge expressly referred to the stress to which the whole of the applicant’s family had been subjected for the preceding two and a half years and in those circumstances, the Crown says that it was unnecessary for the judge to do more. Counsel for the Crown properly conceded, however, that, if it were found the judge failed to consider delay as such, it was an error which would reopen the sentencing discretion.
[10]Arthars v R; Plater v R [2013] VSCA 258, [9], [26]–[27].
On balance, I am persuaded that the judge did fail to take the effects of delay into account. Given the attention which was directed to the subject on the plea, it was to be expected that her Honour would refer to delay as such in her sentencing remarks and, in the particular circumstances of this case, the fact that she did not do so implies that she overlooked it.
The judge below sentenced the applicant as follows:
Charge Offence Maximum term Individual sentence Cumulation 1. Indecent act with child under 16 10 years’ imprisonment 18 months’ imprisonment 6 months 2. Sexual penetration of child under 16 years 25 years’ imprisonment Three years’ imprisonment Base 3. Indecent act with child under 16 10 years imprisonment 20 months’ imprisonment 6 months
4. Indecent act with child under 16 years 10 years’ imprisonment 6 months’ imprisonment Nil Total effective sentence 4 years’ imprisonment Non-parole period 2 years
I would re-sentence the applicant as follows:
On charge 1: to 18 months’ imprisonment
On charge 2: to 30 months’ imprisonment
On charge 3: to 6 months’ imprisonment
On charge 4: to 6 months’ imprisonment.
I would order that two months of the sentences imposed on charges 1, 3 and 4 be served cumulatively on each other and on the sentence imposed on charge 2, making a total effective sentence of three years’ imprisonment, and I would set a non-parole period of 18 months. Otherwise, I would confirm the orders made below
Conclusion
For the reasons I have given, I would reject the application for leave to appeal against conviction but I would allow the application for leave to appeal against sentence, allow the appeal and re-sentence the applicant as I have proposed.
PRIEST JA:
Introduction
Essentially for the reasons advanced by Nettle JA, whose judgment I have had the advantage of reading in draft, I agree that leave to appeal against conviction should be refused. I wish, however, to add a few observations of my own.
As to the application touching sentence, I agree with the reasons of Nettle JA and the orders he proposes.
The unsafe and unsatisfactory ground
By written submissions, the respondent argued — citing Klamo[11] — that there was no ‘solid block [i e, obstacle] in the path of a finding of guilt’. That submission seems to reflect a perception held by some — one that in my opinion is flawed — that the two metaphors referred to in Klamo are capable of general application to all cases where verdicts are said to be unsafe and unsatisfactory.
[11]R v Klamo (2008) 18 VR 644, [40] (Maxwell P) (‘Klamo’).
In Klamo Maxwell P conveniently set out the principles which inform appellate assessment of whether a verdict is unsafe and unsatisfactory:[12]
[12]Ibid 653–4 [38]–[40].
[38]The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:[13]
[13]M v The Queen (1994) 181 CLR 487, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 451–2 (Gaudron, McHugh and Gummow JJ); Weiss v The Queen (2005) 224 CLR 300, 316 [41]; R v Tiburcy [2007] VSCA 124, [5] (Nettle JA).
1.The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
[39] A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged — as distinct from entitled — the jury to come to a different conclusion. In Libke v R,[14] Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the ‘unsafe and unsatisfactory’ ground:
[14](2007) 230 CLR 559, 596–7 [113].
… But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[15] It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[16]
[15]Citing M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ).
[16]See also R v Tiburcy [2007] VSCA 124, [17] (Vincent JA).
[40] In other words, the question posed in M v R,[17] namely:
[17]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?
requires the court of criminal appeal to decide:
… whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.
To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’[18] or whether, instead, the ‘path to a conviction was open’.[19]
[18]R v Shah [2007] SASC 68, [4] (Doyle CJ).
[19]Morabito v R [2007] NSWCCA 126, [34] (Mason P).
It needs to be borne steadily in mind that the metaphors referred to in the last sentence of the extracted passage are no more than that. They were apt for the facts of the cases from which they were drawn, but it should not be thought that they add any gloss or additional requirement to the essential test spelled out by the High Court in M[20] (and the later cases in the High Court which apply it[21]) — whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Such metaphors — convenient for the cases in which they were used — should not be permitted to obscure (let alone displace) the fundamental test prescribed by M.
[20]M v The Queen (1994) 181 CLR 487 (‘M’).
[21]Jonesv The Queen (1997) 191 CLR 439; Gipp v The Queen (1998) 194 CLR 106; MFA v The Queen (2002) 213 CLR 606; R v Hillier (2007) 228 CLR 618; SKA v The Queen (2011) 243 CLR 400. See also Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J).
The two metaphors referred to by Maxwell P in Klamo are derived respectively from remarks of Doyle CJ in Shah and Mason P in Morabito. In Shah,[22] the Court of Criminal Appeal of South Australia, by a majority (Doyle CJ and Sulan J, Debelle J dissenting), set aside as unsafe and unsatisfactory convictions for wounding with intent to cause grievous bodily harm and assault. The convictions had arisen out of an attack in a suburban Adelaide street in the early hours by one group of men on another group. Identification was in issue. Evidence from a security video — if the time was correctly recorded on the video — showed that the appellant could not have been in the vicinity of where the attack took place at the time that it occurred. There was no evidence that the time recorded by the video was incorrect. Doyle CJ agreed with the reasons of Sulan J (who applied the test from M),[23] and added:[24]
The real obstacle to acceptance of the prosecution case is, as Sulan J says in his reasons, the evidence from the security cameras strongly suggesting that Mr Shah was still at the hotel when the attack was happening. I agree with Sulan J that there was no basis upon which the jury could have been satisfied that the attack occurred later than Sulan J puts it, or that the security cameras displayed incorrect times. It was not open to the jury to speculate that, for some unknown reason, the evidence about the time of the attack, or from the security cameras, was unreliable. There was simply no basis upon which the jury could put that evidence aside. This body of evidence is, on the material before the jury, a solid obstacle to reaching a conclusion beyond reasonable doubt, based upon the identification evidence and the other circumstantial evidence, that Mr Shah was a participant in the attack.
[22]R v Shah [2007] SASC 68.
[23]Ibid [143].
[24]Ibid [4] (emphasis added).
Morabito[25] was a case of dangerous driving causing death and grievous bodily harm. The prosecution case was that the appellant, driving a prime-mover with trailer, was inattentive to his driving and collided with other vehicles causing the death of three people and serious injuries to another. It was the appellant’s case that shortly before the first relevant collision with the rear of a Toyota Hilux, something caused his windscreen to shatter or craze so that he could not see through it. The prosecution case principally was put on the basis that the appellant failed to keep a proper lookout. But it was also put in the alternative that if the jury found it was reasonably possible that the windscreen broke only a very short time before the impact with the rear of the Hilux, that still did not explain why on a clear day with clear visibility on a flat, straight stretch of the highway, while the appellant was sitting in an elevated position, the appellant failed to see what was happening in front of him. Accordingly, there was more than one path to conviction. The Court of Criminal Appeal of New South Wales (Mason P, Hidden and Rothman JJ) dismissed the appeal, it being contended that the verdicts were unsafe and unsatisfactory. After observing that the ‘legal principles are not in dispute’, and citing M,[26] Mason P said:[27]
My understanding of the principles relating to challenging a conviction on the ground that the jury’s verdict was unreasonable is that the appellant must persuade the appellate court that it was not open to the jury acting reasonably to arrive at their verdict. If one path to a conviction is open and beyond successful attack by reference to this standard, then an appellant who cannot disentangle the jury’s verdict is unable to sustain the burden of displacing that verdict. In any event, the jury was in my view equally entitled to conclude beyond reasonable doubt that even if the appellant was possibly to be believed on the matter of the shattered windscreen, dangerous driving causative of death and grievous bodily harm were still established. ...
[25]Morabito v R [2007] NSWCCA 126.
[26]Ibid [30].
[27]Ibid [34].
The particular facts of Shah and Morabito give context to — and explain — the metaphors that were used. In Shah the security camera footage was the ‘solid obstacle’ to conviction; and in Morabito, because of the alternative ways in which the prosecution case was put, more than ‘one path to a conviction [was] open’. In neither of those cases, however, did the court essay any additional requirement to, or qualification of, the test to be derived from M. It follows, in my view, that similar metaphors generally would be inapt to cases which turn on credibility. In this regard it will be remembered that M itself did not involve only a single piece of evidence that was a solid obstacle to conviction, or more than one path to conviction that the appellant needed to disentangle. Rather, in M it was a concatenation of circumstances which led to the conclusion that the convictions could not stand. M, it will be remembered, involved allegations of sexual offending by a father against a daughter. The majority in the High Court (Mason CJ, Deane, Dawson and Toohey JJ)[28] found the convictions to be unsafe and unsatisfactory — and entered verdicts of acquittal — for reasons which included discrepancies between what the complainant told police and what she said in court; inconsistencies between the complainant’s evidence and medical evidence; inconsistencies between the complainant’s evidence and the appellant’s wife’s evidence as to surrounding circumstances; a lack of timely complaint; and an absence of evidence supporting the complainant’s version; in circumstances where the complainant, through her previous behaviour, revealed a capacity to make a complaint of a sexual nature to a person in authority about a member of her family. Added to the inconsistencies and discrepancies was ‘the improbability of the appellant acting as he was alleged to have done in the circumstances prevailing … namely, on a squeaky bed in an unlocked bedroom which was only a short distance from, and within hearing distance of, another bedroom occupied by the appellant's wife, in a fully occupied, small house’. Moreover, the appellant, who called evidence of good character at trial, had made full denials in his interview and gave evidence on oath at his trial.
[28]Gaudron J agreed with the majority as to the applicable test, but differed as to result.
Independent support for the complainant’s evidence
Were it not for the evidence of ‘F’, I would be inclined to the view that the verdicts on charges 1 to 4 are unsafe and unsatisfactory. The evidence of F, however, is capable of resolving any lingering doubts that I — or the jury — might have enjoyed as to the applicant’s guilt.
In my opinion, there is not much force in the fact that complainant, C, did not distinctly refer to the activities founding charges 5 and 6 in her complaint to F; or in C’s failure to precisely refer to the events foundational of charges 1 to 4 when speaking to Detective Bieser; or in there being no note of the act on which charge 5 was based in the ‘first disclosure interview’ with Detective Bieser; or in C’s supposedly different versions about when her leggings were taken down (relevant to charges 1 to 4). I am in general agreement with Nettle JA as to his reasons for rejecting these aspects as rendering the verdicts unsafe and unsatisfactory (reminding myself, as I do, that the necessary focus needs to be on the overall picture generated by the evidence as a whole, rather than on individual pieces of evidence).
To my way of thinking, however, C’s change of version relevant to charges 5 and 6 is very troubling, as is what I regard to be the general implausibility of the circumstances of the offending.
Taking the second of those matters first, it must be acknowledged that experience demonstrates that some of those who offend sexually against children are often opportunistic in their behaviour, and sometimes indulge in highly risky activity. Duly acknowledging those matters, however, the evidence in this case was that the floorboards in the house were noisy and the walls were thin. The applicant’s defacto wife, ‘W’, gave evidence that when her daughter, ‘D’, came into their bed, the applicant got up. He left the bedroom and was away for ‘five minutes or so’. The applicant then returned to the bedroom to read. W swore that she was awake for the whole of the time when the offending embraced by charges 1 to 4 could have taken place, with the bedroom door open and in close proximity to where the complainant was situated, yet, despite the acoustic peculiarities of the house, she heard nothing amiss. (Similarly, a student who was a guest in the house, ‘A’, heard nothing awry.) If W’s evidence is to be believed, to have offended in the manner alleged would have been an extremely bold undertaking by the applicant, bearing on the plausibility (or implausibility) of C’s allegations.
Of far more moment, however, is the complainant’s description — and later recantation — of the events surrounding the activities making up charges 5 and 6. In her first VARE[29] the complainant said that she had gone to get a drink of water from the kitchen. The complainant then graphically described how the applicant had chased her into the living room and knocked or tripped her over so that she was ‘on all fours’. He then picked her up and put or pushed her down on the couch, and after she tried to push him away, the applicant licked her vagina. In her second VARE, however, C recanted the more graphic aspects of her earlier account. She said that she was not chased, and it was ‘definitely not right’ that she ended up on all fours. And in her cross-examination on the special hearing, she confirmed that she had not been chased and did not end up on all fours. C said that she had told the truth when she corrected her account in the second VARE.
[29]Visual and Audio Recorded Evidence.
C’s untruthfulness as to these matters impinged significantly on her credibility, and, to my way of thinking, her explanation for the lies — that she did not want it to seem like the sexual activity was her fault — is unconvincing. (Although, given the inscrutable nature of the jury’s deliberations, it is impossible to know, it may well be that the failure of the jury to agree on verdicts on charges 5 and 6 is a reflection of the dissatisfaction of at least part of the jury with the complainant’s credibility with respect to these charges given her originally false version and later recantation.) In my opinion, the fact that C was prepared to (at the least) embellish in the way in which she ultimately admitted that she did, seriously impaired her credit. I do not accept the respondent’s argument that C’s credit was rehabilitated by her volunteered withdrawal of part of the allegations that she made.
The general implausibility of the circumstances relating to charges 1 to 4, taken with the significant impairment to C’s credibility flowing from her admittedly false account given in the first VARE, looked at against the applicant’s good character and his denials in two probing interviews with police, might have led me to have had a reasonable doubt about the applicant’s guilt (being one that the jury should have entertained) were it not for the evidence of F. In my opinion, her evidence is capable of resolving any doubt about whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on charges 1 to 4. Despite moderately extensive testing of her account, the essentials of F’s evidence remained that she saw the applicant lying ‘right next to [C]’, and heard C say ‘I can call the police, you know’. The jury were entitled to use F’s evidence generally as supporting C’s account with respect to charges 1 to 4, and as resolving any doubts about her credibility flowing from the factors that I have identified. It is difficult to imagine an explanation consistent with the applicant’s innocence as to how C might come to raise with him, whilst he was lying next to her in the circumstances described, the threat of police involvement.
For these reasons it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.
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