Parker (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0083

TREVOR PARKER (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of sexual offences, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant, the complainant and other persons.

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JUDGES:	NIALL, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2024
DATE OF JUDGMENT:	19 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 209
JUDGMENT APPEALED FROM:	DPP v [Parker] (County Court of Victoria, Judge MP Bourke, 11 October 2022)

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CRIMINAL LAW – Appeal – Indecent act with a child under 16, incest and false imprisonment – Whether verdicts unreasonable or cannot be supported having regard to evidence – Jury must have had doubt as to applicant’s guilt – Application for extension of time granted – Leave to appeal granted – Appeal allowed – Judgments of acquittal entered.

Criminal Procedure Act 2009, s 276(1)(a); Jury Directions Act 2015, s 54D.

Gardner v The King [2024] VSCA 83; Pell v The Queen (2020) 268 CLR 123; R v CP [2000] VSCA 178, considered.

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Counsel
Applicant:		Mr J O’Connor
Respondent:		Ms S Lenthall
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
TAYLOR JA
BOYCE JA:

Introduction

The applicant faced trial in the County Court on an indictment containing five charges of sexual offending against his two children, his daughter AT and his son BT. He was convicted of the three charges concerning his daughter and acquitted on the remaining charges.
The prosecution alleged that the applicant offended against his daughter between 1997 and 2005 when she was aged between about seven and 14 years of age. The offending was said to have occurred at the applicant’s parents’ house in Blackburn, Victoria.
The applicant has sought an extension of time to apply for leave to appeal against conviction on the following ground:
The verdicts of guilty on each of charges 1, 2 and 3 are unreasonable or cannot be supported having regard to the evidence.
For the reasons that follow, we would grant the extension of time and leave to appeal and allow the appeal. Given our conclusion that the convictions are unreasonable or cannot be supported having regard to the evidence, the convictions should be set aside and judgments of acquittal entered on the three charges.

Factual background

The applicant and his former wife were married in 1987 and had three children together. They divorced in 1995. When the applicant and his former wife divorced, his wife left Victoria to live in Tasmania with relatives. The complainant and her siblings went to live with their mother. As part of access arrangements, the applicant was permitted access to his children in Tasmania and visited that State every three weeks or so. The complainant said that the applicant first offended against her in Tasmania during access visits and evidence of these matters was adduced as uncharged acts.
Charge 1, which alleged an indecent act with a child under 16 and which, in the indictment, was expressed as a course of conduct charge, covered multiple acts of touching or fondling the complainant’s vagina, mainly at night in her bedroom at the Blackburn home. This escalated to digital penetration from about the age of eight, which was another course of conduct charge alleging incest contrary to s 44(1) of the Crimes Act 1958 (charge 2).
The complainant said that the digital penetration occurred on many occasions until she was about the age of 14. During the trial, the complainant gave evidence of a specific event, which occurred when she was 13 or 14 years of age, when she was digitally penetrated while being tied to a chair in a room at the house.
The complainant gave evidence that, on other occasions, she was tied to a chair. She told the jury that this happened three or four times in total. This conduct was uncharged except for one occasion which occurred when she was aged 11 or 12 (charge 3: false imprisonment). The complainant gave evidence that the applicant tied her to a chair on wheels by tying her wrists with a shirt tie and her feet with duct tape and then wheeled the chair into a wardrobe and closed the doors. She said that the applicant started to tie her to chairs when she was ten years old.

The evidence

The complainant’s evidence-in-chief

The trial before the judge was a retrial following a successful appeal by the applicant. The earlier trial had been heard before a different judge. Over objection, the prosecution was permitted to replay an edited form of the complainant’s evidence given at the first trial and there was no further cross-examination of the complainant at the retrial.
The evidence-in-chief was brief, extending over 11 pages of transcript.
The complainant said that, from the age of seven or eight, she would travel to Victoria every three weeks to visit her father and stay for three days, including the weekend. She shared a bedroom with her sister. The complainant said she was both physically and sexually abused by her father. She also said she observed her father physically abusing her brother by hitting him on the back of the neck and smacking him around the shoulders.
She said that her father was physically abusive to her in that, from the age of ten, he tied her to chairs. She said that this happened on three or four occasions. She said that she had come home from school and was taken by her father to the bedroom, pushed onto a chair and had her wrists tied with a shirt tie and her feet fixed to the chair with duct tape. She said that, on one particular occasion, while restrained in the chair she was pushed into a wardrobe with the doors closed. She said that she could give no reason why her father would tie her to a chair.
In relation to the alleged sexual abuse, the complainant said that it commenced when she was aged eight. She said that her father had started to come into her bedroom when she was about five years old, push her legs apart, put his hand under the bed sheets and ‘fiddle with’ her vagina. From when she was aged eight, the applicant started to penetrate her vagina with his fingers. She said it also happened ‘on occasions in the lounge room’ when she was sitting on the couch with her father.
The complainant was asked how often he would touch her vagina in the period before he had commenced to insert his fingers into her vagina, to which she answered ‘weekly when in his care’.
The complainant said that the acts of penetration happened in the bedroom. She said that when she was asleep he would come into her bedroom, sit on the end of the bed and put his hand under the blankets, pushing her legs up so as to expose her bottom, and ‘fiddle with [her] and … insert his fingers into [her] vagina’. She said that this happened ‘weekly when in his care’ from the age of eight to 14.
The complainant recalled a specific occasion when she was 13 or 14 years old when she was tied naked to a metal chair (her legs with gaffer tape and her arms with shirt ties) and the applicant put his hands up her thighs, fiddled with her vagina and then inserted his fingers into her vagina. She said that her next memory was awakening in bed in the early hours of the following morning with lots of pain, and that she was scared, shaking and crying.
The complainant said she had spoken to her mother when she was aged 12 about being locked inside her bedroom by her father and sometimes in a wardrobe. She said that she had told a friend, DK, when she was aged 16 or 17 that her father was abusive and manipulative and that she alluded to sexual abuse but had not ‘really spelt it out’. She said that at this time she was very confused, that she had started to realise how wrong the applicant’s conduct was and that she had spoken to DK about how DK’s dad had touched her and whether it was the same.
The complainant also said that she disclosed the alleged abuse to the applicant’s fiancé, TH, when she was around nine or ten years old. She said that on this occasion TH had asked her whether her father was fiddling with her or abusive, to which the complainant replied ‘yes’.

Cross-examination of the complainant

The cross-examination of the complainant, which had been edited from the first trial so as to exclude a large number of interventions by the trial judge, was played to the jury. It was long and repetitive in parts. Large parts of the complainant’s evidence given at committal were put to the complainant, presumably to establish prior inconsistent statements. As occurred here, the overuse of this technique makes it difficult to follow parts of the evidence as it is recorded in the transcript and likewise may have made it harder for the jury to comprehend the evidence.
The complainant confirmed that she completed her first statement to police in November 2014. In September 2016, she provided a second statement. The complainant agreed that in her November 2014 statement she said that the applicant had digitally penetrated her vagina since she was around eight years of age. The complainant agreed that she had said in the statement that he continued inserting his fingers into her vagina whilst she was sleeping about once a week until she was 14 years old. In cross-examination, she agreed that she only visited her father every three weeks. When asked to explain the obvious discrepancy, the complainant said that she had raised the issue with the police officer who had taken the statement, that the police officer had said that the relevant part of the statement was confusing and that the police officer had worded the statement as she saw fit which the complainant felt, at the time, was the right thing to do. She agreed that the police officer had told the complainant that her account was too complicated and that she would simplify it so that it referred to the penetration occurring every week.
The complainant agreed that she had contact with the Department of Human Services (‘DHS’) and the police from when she was about eight years old.
The complainant said that when she was overseas in 2013 she was contacted by Detective Leading Senior Constable Rhett Rattray (‘Detective Rattray’) in relation to her father. She agreed that her brother was having issues with their father at that time and she was asked if she would be willing to make a statement in relation to her father. She said that the request came from her mother and not from her brother. In order to maintain contact with the police, the complainant set up an email account for that purpose.
The complainant said that Detective Rattray had asked her to write out a statement of what happened when she was a child. As a result, she completed 66 handwritten pages in an exercise book. The complainant denied that the exercise book was the most complete account of what she could recall. She acknowledged that at the committal she had agreed with the proposition that the exercise book was intended to be a complete account. In cross-examination, she said that this answer at the committal was given when she was tired and that she had not completely understood the question.
The exercise book was not tendered in evidence. In the course of cross-examination, various parts of the exercise book were read to the complainant either verbatim or in paraphrase. It appears from her evidence that the exercise book contained the following passage: ‘When I was little I remember [the applicant] always wanting me to sit on his lap, my legs would be between his legs and his hand would often fondle me at the back of my legs, my bottom and my vagina, I often wore a dress which made this so much easier for him’.
The complainant had also written in the exercise book that the applicant would come into her bedroom late at night and often wake the complainant and her sister up for a chat, which she wrote often lasted for hours.
The complainant agreed that she had made no mention of sexual penetration by her father in the exercise book. The complainant agreed that she had not described in the exercise book that the applicant had come into her bedroom, forcing her knees up and putting his hand under the bed sheet. The complainant said that the exercise book was consistent with her evidence-in-chief during which she had referred to the applicant fondling her on a couch in the loungeroom.
The complainant agreed that she had described physical abuse in her evidence-in-chief, including being tied to chairs from the age of ten, which happened on three or four occasions. The complainant agreed that, in the exercise book, she did not refer to being tied to a chair and being put into a wardrobe.
Asked why she had left out any mention of penetration having occurred, including the time when she was tied up in a chair and digitally penetrated, the complainant said that she did not trust the police and what they would do with the information. She explained that she had sent the exercise book from India and was told that it could take up to six months to arrive in Australia. She said that she had no idea whose hands the exercise book would come into in that six-month period.
The complainant agreed that, after Detective Rattray had received the exercise book, he contacted her by email. In that email, which was not tendered into evidence but the contents of which were read to the complainant, Detective Rattray said:
However, there is very limited detail with regard to sexual assault on you, which is the main thing I need to create your statement. Are you unable to remember specific instance[s] or trends in what would happen to you or could you just not write about[?]
The complainant agreed she had responded by an email in which she wrote:
The sexual abuse happened most of my childhood as a little girl. I was forced to sit on [the applicant’s] lap while he played with my vagina. He would come into my bedroom overnight and wake me up sometimes to fondle with my vagina. I find it difficult to know what information you’re after. I have no dates, nor do I have much of an idea what was actually done to me.
Although its contents were read to the complainant and she agreed sending it, that email was not tendered in evidence.
Asked directly about the failure to include any specific allegation that the applicant had put his finger in her vagina, the complainant responded that at the time she ‘didn’t realise how wrong it was’, she ‘didn’t have the information that it was wrong for [her] father to do that’, but that she was ‘aware and [had] vivid memories of it happening’.
The complainant agreed that she was 23 years of age when she exchanged those emails but maintained that she did not realise it was wrong for her father to put his finger into her vagina at that time. She confirmed again that she did not mention penetration in the email because she did not know that it was wrong.
Cross-examined on why she did not know that it was wrong for her father to put his finger into her vagina, the complainant said that it was embarrassing that she did not know. When it was put to her that, at the committal, she had said that she realised that sexual abuse was wrong from when she was 17 or 18 years old, the complainant said that it was then that she started to realise but that she did not ‘get the full grasp of it’ until she was much older.
The complainant agreed that, in July 2002, her mother took her to a police station in Ulverstone, Tasmania. Although the precise detail that led to the visit to the police at that time is unclear, at the committal the complainant said that she complained to her mother that the applicant had locked her in the house, that she was being tied up and that her father was coming into her bedroom at night when she was asleep. In her cross-examination, she said that she could not recall whether she had told her mother that she had been tied up but she said she ‘probably alluded’ to it.
The complainant agreed that she had made a statement to the Tasmanian police in the middle of 2002. There was no mention of the complainant’s father coming into her room at night in the statement she gave to the police. The complainant accepted that she did not mention to the police at that time that her father was touching her on her vagina or putting his finger in her vagina. In her statement, she told the police that her father had never hurt her.
The complainant denied reading her statement to the police at the time, saying that she could not read when she was 11 years old. She said that she was handed the statement to read and pretended to read it but could not read. She said that her mother nodded, indicating to her to sign the statement, which she did. She said that she was extremely embarrassed that she could not read as an 11-year-old. She accepted that, at the committal, she had agreed that she had read over and signed the statement.
The complainant made a further statement to the Tasmanian police in September 2002 in which she made no mention that her father was touching her vagina.
The complainant recalled going to the Box Hill police station in June 2002 when she was interviewed by a police officer, some DHS workers and her school vice principal. She agreed that at that time she did not make any complaint of sexual abuse. She said that she had recalled at the time of giving evidence that she was asked by the police officer if anyone was sexually interfering with her. The complainant agreed that she told the police officer and DHS workers that she used the word ‘fanny’ to describe her vagina. She agreed that she had told them that there was nobody who touched her on the parts of the body that she did not think was OK. In re-examination, the complainant said that she had asked for clarification about what was appropriate and the answers that were provided led her to believe that what her father was doing to her was OK. She was not able to be more specific as to what was said that left her with that impression.
The complainant again went to the Box Hill police station in October 2002. She made no mention on that occasion that her father was putting his finger in her vagina, coming into her room at night when she was asleep, locking her in the house, or tying her to a chair.

The agreed facts

Some facts were agreed at trial pursuant to s 191 of the Evidence Act2008. Relevantly, the statement of agreed facts annexed the 2000 end-of-year school report of the complainant for Grade 4 and the June 2002 mid-year school report of the complainant for Grade 6.
In the Grade 4 report, under the heading ‘literacy’, the complainant was marked as grade-appropriate in relation to a number of outcomes including ‘[r]eads, understands and responds to a range of texts suitable for this level’ and ‘[u]ses text structures and features to read a range of predictable text forms effectively’. She was described as being at a grade-appropriate level in all areas of literacy.
In the Grade 6 report, referable to June 2002, and using a scale of ‘E’ for ‘established’, ‘C’ for ‘consolidating’ and ‘D’ for ‘developing’, the complainant was assigned ‘E’ for ‘reads fictional and factual texts for pleasure and interest and constructs responses to them’ and C for ‘uses self-correcting strategies to produce expressive, fluent reading’.

The evidence of the complainant’s mother

The complainant’s mother, AGC, confirmed her relationship with the applicant and the circumstances of their divorce in 1995. She confirmed that the applicant was originally permitted to visit the children in Tasmania, where they lived with her, every three weeks before a variation of the orders was made 18 months later, permitting visits in Victoria. Her evidence was that her children told her that they were locked in rooms when they were staying with their father in Melbourne.
She confirmed that her daughter did not make any allegations to her about sexual offending by the applicant, only that he exhibited ‘bad behaviour’, until she disclosed alleged sexual abuse at the complainant’s sister’s graduation when the complainant was approximately 21 years old. AGC was told by her son, BT, that the applicant had abused him when he ‘alluded’ to sexual offending but never disclosed details of the offending to her.

AGC said that she was not present when the complainant signed her 2002 police statement and she did not believe that she had sat with the complainant during her discussions with the police.

The evidence of TH

TH had been in a relationship with the applicant. She said that both the complainant and her brother had disclosed to her that they had been sexually touched by a person who was not the applicant. TH said that, after her relationship with the applicant concluded, the complainant and TH’s daughter continued to attend the same school. She said that, one day after school finished, about three weeks after the end of her relationship with the applicant, the complainant approached TH and asked her if she could come home with TH and stay with her. In that conversation, the complainant told TH that her father had been sexually touching her. TH said that, as a result of that disclosure, she spoke to the principal of the school and to the Nunawading police.
In cross-examination, defence counsel suggested to TH that she had never spoken to the police about offending by the applicant against the complainant, which she denied.

The evidence of DK

DK was a friend of the complainant. DK’s evidence was presented via a recording of her evidence in 2018. DK confirmed that, when both girls were in Grade 8 and were approximately 13 years old, the complainant disclosed to her that the applicant would ‘fiddle’ with the complainant’s ‘private parts’. DK also said that ‘after college’ the complainant had disclosed to her that the applicant ‘would have sex with her’ and would lock the complainant ‘in her room or in her cupboard’.

The evidence of Dr Flower

The prosecution called Dr Teresa Flower, a consultant child and adolescent psychiatrist. Dr Flower was asked about the potential behaviour of victims of child sexual abuse. She said that, based on research, only about 30 per cent of children will disclose sexual abuse at the time the abuse occurred. About another one-third disclose in the period between one to 12 months after the offending, and some victims never disclose sexual abuse at all.
Dr Flower said that the greatest number of disclosures of child sexual abuse happen with primary school children, often disclosing to a parent figure, but that, by adolescence, children have a greater reluctance to disclose because they have an understanding of the implications of their disclosure in the family. Dr Flower said that most children are extremely embarrassed and feel ashamed about what has happened to them and may feel in some way responsible or that they have participated in the abuse. Out of fear of being disbelieved, some children ‘test the water’ by making partial disclosures, such as by giving a very short version or a very limited version of what has happened to them.

The evidence of Detective Rattray

In his evidence, Detective Rattray said that in early 2013 he, together with other police officers, had been asked to review information in relation to a number of matters, one of which included the matter involving the applicant. After obtaining statements from the complainant’s brother and mother, Detective Rattray contacted the complainant. He said that he asked the complainant to compile notes of everything that she could remember and he told her that the police were investigating allegations of sexual and physical abuse of her and her brother by the applicant. He agreed that he had made it clear to the complainant that the investigation was in respect of sexual abuse allegations.
Detective Rattray said that he had interrogated the police database and there was no record of any allegation of sexual abuse against the applicant that could have related to any disclosure by TH. He said that any disclosure to the police of sexual offending would have been recorded on the database.

The evidence of Detective Leading Senior Constable Ness

Detective Leading Senior Constable Bobby Ness (‘Detective Ness’) gave evidence that in 2014 she was attached to the Sexual Offences and Child Abuse Investigation Team at the Box Hill police station. She had no independent recollection of taking a statement from the complainant on 24 July 2014. In that context, she gave evidence about the normal procedure. Detective Ness said that it was her practice to reduce a statement to writing and to give the witness the opportunity to read the statement. She said that, if a witness said that their statement or draft statement did not necessarily reflect what had happened, she would alter the draft statement to reflect the correct version of events. If a witness told her that their statement did not necessarily reflect what happened, she would not have told the witness that it did not matter.

The evidence of the applicant

The applicant gave evidence in which he denied the offending.

The applicant’s submissions

The applicant filed an affidavit explaining the reasons for his delay in filing the application. In short compass, the applicant was initially advised that an appeal lacked merit, following which the applicant applied for funding to Victoria Legal Aid (‘VLA’). The subsequent delay in filing the application was largely explained by a delay in obtaining transcripts of evidence that were not provided with the funding application but were necessary for VLA to consider the application.
As to the proposed ground of appeal, the applicant submits that the prosecution case depended on the credibility and reliability of the complainant’s account. He says that he was at a significant forensic disadvantage by reason of the passage of time with the associated loss of opportunity to examine and challenge the details of the allegations.
The applicant submits that the credibility and reliability of the complainant was so damaged that it was not open to the jury to determine beyond reasonable doubt that the applicant had committed the charged acts. At the forefront of that submission, the applicant relies on four demonstrable lies which, it is submitted, were strategic in nature and deliberately designed to overcome perceived weaknesses in the complainant’s account.

The first alleged lie

The first alleged lie relates to the circumstances in which the complainant made the statement to the Tasmanian police in July 2002. The complainant said that she had reported to her mother that she was being locked in the house by the applicant, that he was coming into her room at night when she was asleep and that she ‘probably alluded’ to being tied up by her father.
In the statement she made to the police at that time, she did not mention that her father was sexually assaulting her, nor did the statement contain any mention of the fact that the applicant was coming into her room at night or that she was being locked in the house. The complainant says that, although she had signed the statement at the time, which did not include these matters, she only pretended to read the statement because she could not read.
The applicant submits that this was a lie. As already explained, the complainant’s school reports for the end of Grade 4 and the middle of Grade 6 were adduced in evidence before the jury as an annexure to a statement of agreed facts. The applicant submits that those reports demonstrate that the complainant was capable of reading in 2002.

The second alleged lie

The second alleged lie concerns the complainant’s statement to police in November 2014 in which she said that the applicant had inserted his fingers in her vagina weekly until she was 14 years old. The complainant says that she attempted to qualify that assertion with the police officer taking her statement but that the police officer had told her that her version of events was confusing and that the officer had worded it as she saw fit.
The prosecutor called evidence from Detective Ness who took the statement at the time. Although she had no recollection of the specific interaction with the complainant, she gave evidence to the effect that it was not her normal practice to tell a witness that it did not matter if a witness told her that their statement did not necessarily reflect what had actually happened.

The third alleged lie

The third alleged lie concerns the complainant’s evidence that, in June 2002 at a meeting at the Box Hill police station with a police officer and DHS workers, she had asked for clarification as to ‘who was okay to touch [her] there’, referring to her genitalia. The complainant’s evidence was that the answer they provided led her to believe that what her father was doing to her was OK.
According to the notes obtained from the June 2002 meeting, which were adduced into evidence by the informant, the complainant stated that ‘there is nobody who touches her on parts of the body that she does not think is okay’.

The fourth alleged lie

Fourthly, when taxed in cross-examination on why she had not included in the 2013 diary any mention of sexual penetration by the applicant or having been tied to a chair, the complainant responded that she did not realise how wrong it was and ‘didn’t have the information that it was wrong for [her] father to do that’.
The applicant submits that the cumulative effect of these lies ought to have led the jury to entertain a reasonable doubt as to the complainant’s credibility. The applicant also points to the following matters as supporting such a doubt:
(a)the differences in the complainant’s account as to the frequency of offending in her various statements;
(b)her evidence at the committal that she had read the July 2002 statement as compared to her evidence at trial that she had not read it;
(c)the complainant’s statement at the committal that the 2013 diary was the most complete account that she could give at the time, which she later denied at trial; and
(d)the complainant’s statement at the committal that she first realised sexual abuse was wrong when she was about 17 or 18 years of age, although she later maintained that at 23 years of age she did not have an understanding that digital penetration of her by her father was wrong;
(e)the complainant’s statement in the 4 August 2013 email to Detective Rattray that she did not have much of an idea of what was done to her, in conflict with her evidence that she had ‘vivid memories’ of the alleged acts of penetration; and
(f)the complainant’s motive to lie relied on by defence counsel, namely that the complainant was motivated by the applicant’s failure to support her brother and evicting him from the house.

The respondent’s submissions

The respondent contends that the application for an extension of time should be refused on the basis that the proposed ground is not reasonably arguable. The respondent also notes the extent of the delay between the allocation of the matter to the solicitor and the filing of the application for an extension of time.
As to the proposed ground of appeal, the respondent submits that the Court should be cautious in assessing the plausibility of explanations given by the complainant as a 28-year-old when she was being asked about her state of mind or the facts that existed at much earlier points in time. The respondent submits that the veracity of the complainant’s evidence has to be assessed in light of the impact of sexual offending against children and what might or might not reasonably be expected of a victim of child sex abuse.

The first alleged lie

The respondent submits that it has not been established that the complainant’s evidence that she could not read when presented with the statement by police in Tasmania was untrue, let alone deliberately untrue. The respondent submits that the school reports were of limited value and that they do not cast light on whether the complainant was then capable of independently reading a police statement. The respondent further submits that it is difficult to find that the evidence was untruthful when there was no opportunity for the complainant to answer that point as she was not cross-examined either on her ability to read or on the contents of the school reports.

The second alleged lie

The respondent submits that the complainant’s evidence as to the wording of her statement in 2014 concerning the frequency of the sexual offending was, in substance, little more than a discussion between the complainant and Detective Ness about the appropriate wording. The respondent submits that this did not amount to an allegation that the police officer had consciously, deliberately and contrary to all of her training caused the complainant to make a false statement on oath. Further, in circumstances where Detective Ness could not recall drafting the statement, it cannot be said that the complainant deliberately lied about this matter.

The third alleged lie

In relation to the complainant’s evidence that she was left with the impression that what her father was doing to her was appropriate, the respondent submits that the complainant’s recollection may be honest and mistaken. Alternatively, it was in the realm of possibility that there was a discussion around the boundaries of appropriate parental touching, such as bathing, dressing, medical assistance and the like, and it was plausible that this type of discussion could have cemented a view in the complainant’s mind that there was nothing necessarily wrong with what was happening to her. The respondent submits that the complainant’s explanation about her lack of complaint in 2002 had not been demonstrated to be a lie and was quite plausible or possible. The respondent submits that it was an explanation that the jury could readily have accepted or considered to be a product of flawed memory rather than a deliberate lie.

The fourth alleged lie

The respondent submits that the average 23-year-old would well understand how wrong it was for a father to sexually penetrate his daughter but the complainant, on her version of events, had experienced significant sexual abuse from the age of five and that this fact, understood in light of the evidence of Dr Flower, may well have distorted her view, even as a 23-year-old. Even if it was open to the jury to accept that the evidence was untruthful, the respondent submits that the applicant has not demonstrated in this Court that the evidence was deliberately untrue.
More generally, the respondent notes the following:
(a)The complainant’s statement in the 4 August 2013 email that ‘nor [did she] have much of an idea what was actually done to’ her was a reference to her awareness of the wrongfulness of the conduct and not about whether it occurred.
(b)The complainant denied that her complaint was motivated by issues her brother had with the applicant. The respondent submits it is implausible that the complainant would go to such lengths when she had not even spoken to her brother throughout 2013.
(c)There was evidence from TH of the complainant saying to her that her father had sexually touched her.
(d)There was also the complaint evidence to DK when the complainant and DK were both aged 13 in which the complainant told DK that the applicant fiddled with her private parts and later complained that the applicant would have sex with her and would lock her in a room or in the cupboard.
Ultimately, the respondent contends that the four alleged lies are better described as a conflict in the evidence on matters of little significance that were no doubt assessed by the jury when evaluating the evidence. Nonetheless, the respondent submits that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of the charges.

Extension of time

The applicant applied for an extension of time to file his application for leave to appeal on 11 May 2023, seven months after he was sentenced. The applicant therefore requires an extension of time to be able to file his application for leave to appeal against conviction.[2] In considering whether to exercise its discretion to grant an extension of time, the Court may have regard to, among other considerations, the length and reasons for the delay and the applicant’s prospects of success should the extension of time be granted.[3]
[2]Criminal Procedure Act 2009, ss 275(1), 313(1).
[3]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
In our view, the applicant has provided a satisfactory explanation of the circumstances causing the delay. Nonetheless, it is necessary to take into account his prospects of success before determining whether to grant the extension of time sought. Accordingly, it is convenient to turn to consider the merit of the sole proposed ground of appeal.

The applicable principles

The principles that this Court must apply in considering a ground that contends that the verdict is unreasonable or cannot be supported having regard to the evidence[4] are well understood.[5] This Court must consider all of the evidence and ask itself whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.
[4]Criminal Procedure Act 2009, s 276(1)(a).
[5]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’); R v Baden-Clay (2016) 258 CLR 308, 328–9 [65]–[66]; [2016] HCA 308; Pell v The Queen (2020) 268 CLR 123, 145 [38]–[39]; [2020] HCA 12.
In Pell v The Queen (‘Pell’), the High Court said that the analysis to be undertaken by this Court must proceed on ‘the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable’.[6] 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.’[7]
[6](2020) 268 CLR 123, 145 [39]; [2020] HCA 12.
[7]Ibid.
Recently, in Gardner v The King,[8] this Court referred to the principles to be applied, stating the relevant question as whether ‘upon an examination of the record, the jury ought, acting rationally, to have entertained a reasonable doubt as to proof of the applicant’s guilt, whether by reason of inconsistencies, discrepancies or other inadequacy in the complainant’s evidence, or in light of other evidence’ — in other words, ‘whether, having regard to those matters, the jury must (rather than might) have entertained a doubt as to the applicant’s guilt’.[9] That assessment must occur giving ‘full allowance … to the advantages enjoyed by the jury in having seen and heard the witnesses give evidence in the unfolding criminal trial’.[10] The Court expressly disavowed an approach by which the Court first asks whether it has a doubt about the conviction and then considers whether the conviction is explicable by the advantages enjoyed by the jury, observing that such an approach would ‘invert the process’ and ‘blur the functional or “constitutional” demarcation between the province of the jury and the province of the appellate court.’[11]
[8][2024] VSCA 83.
[9]Ibid [85] (Emerton P, McLeish and Macaulay JJA).
[10]Ibid [86].
[11]Ibid [88], citing Pell (2020) 268 CLR 123, 145 [38]; [2020] HCA 12; M (1994) 181 CLR 487, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.

The verdict is unsafe

It is easy enough to identify the discrepancies or other inadequacy in the complainant’s evidence. These comprise the four alleged lies to which the applicant refers. Dealing with them chronologically:
(a)In relation to the preparation of the 2002 statement to the Tasmanian police, the complainant was confronted with the fact that her statement did not mention that her father was touching her vagina, to which she responded that at the age of 11 she was unable to read the statement. This was inconsistent with her school reports.
(b)In her statement to police at the Box Hill police station in June 2002, the complainant said that she was led to believe that what her father was doing to her was OK and therefore she did not report it.
(c)Her account in the exercise book that she completed in 2013 whilst overseas contained no mention of digital penetration. When confronted with this omission, she said that she did not know at that time (when she was aged 23) that it was wrong for her father to act in that way but that she had vivid memories of it occurring.
(d)In her statement to the police in 2014, she said that the offending occurred weekly, which in cross-examination she attributed to the instruction of the police officer taking the statement.

As the applicant acknowledged, these matters do not directly concern the complainant’s evidence as to the actual offending. Rather, they go to the credibility and reliability of the complainant’s account. However, that dichotomy is not as neat as it may first appear. For example, the express allegation that the applicant digitally penetrated the complainant’s vagina was first made in the November 2014 statement. Before that, the complainant had referred to fondling. The failure to include the allegation of penetration and, more importantly for present purposes, a false explanation as to why it was not included may bear upon the assessment of the honesty and reliability of the complainant and rationally affect, at least indirectly, the assessment of the probability of whether the alleged sexual acts occurred.[12] Generally, the closer the relationship between the subject matter of the false evidence and the charged act, the greater the forensic impact of it being found to be untruthful.
[12]See BQ v The King [2024] HCA 29, [34].
As Pell makes clear, the starting point for this Court is to accept that the jury found the complainant’s account credible and believable. It does not necessarily follow that that assumption requires this Court to assume that the jury believed every aspect of the complainant’s account, rather than a sufficient amount as to enable them to be satisfied beyond reasonable doubt of the applicant’s guilt. The approach in Pell that requires acceptance that the jury found a complainant credible can easily accommodate the circumstance in which the witness admits to having told a lie.
The critical inquiry is whether, having regard to these discrepancies, the jury was bound to have a doubt as to the applicant’s guilt. As explained in Pell, it is necessary first to identify whether there is a discrepancy, inconsistency or other inadequacy, and then to ask whether, by reason of that discrepancy, it was not rational for the jury to conclude that the applicant is guilty.[13] In one sense, the applicant seeks to load this inquiry in his favour by asking this Court to treat each discrepancy as being the product of a deliberate lie to cover up a false account of the charged acts. Framed in that way, the discrepancy is defined so as to suggest the conclusion to the separate question about whether the jury must have had a doubt as to the applicant’s guilt. That approach would conflate the question of whether there is a discrepancy or weakness in the complainant’s account with the ultimate question about what that discrepancy says about the quality of the verdict.
[13]Pell (2020) 268 CLR 123, 145 [39]; [2020] HCA 12.
In other words, even if it accepted that the complainant told lies, that is not necessarily sufficient to show that the jury must have had a doubt about the applicant’s guilt. For example, a jury might consider a complainant to have lied for a purpose that is not inconsistent with the applicant’s guilt. In R v CP, for instance, Chernov JA (with whom Brooking and Ormiston JJA agreed) concluded that it was ‘open for the jury to conclude that, notwithstanding the complainant’s lies and the nature of them, her evidence as to what the applicant did to her was credible and, in all the circumstances, they were satisfied beyond reasonable doubt that the applicant was guilty on the relevant counts’.[14]
[14][2000] VSCA 178, [23].
In undertaking the relevant inquiry, it is important to consider the four alleged lies both individually and cumulatively. It is, however, convenient to start with the failure to include any mention of sexual penetration in the complainant’s account as recorded in the exercise book.
It will be recalled that, having received the exercise book from the complainant, Detective Rattray sent an email in which he described the very limited detail concerning any sexual assault. The complainant’s response was that she had found it difficult to know what information the police were after and that she had no dates ‘nor [did she] have much of an idea what was actually done to’ her. It was after that exchange of emails that she gave the statement in November 2014, which contained allegations of frequent sexual penetration by the applicant.
The failure to include an express allegation of penetration was always going to be the subject of challenge in cross-examination. The November 2014 statement represented a significant change in detail. The central concern, however, is not that there was a shift in the account but rather relates to the complainant’s explanation for that change. The complainant said and then confirmed that she had not included details of sexual penetration because she did not know at that point in time that it was wrong.
A witness confronted with or anticipating a line of attack may seek to deflect or avoid it. A defensive lie in such a context does not necessarily destroy the witness’s credibility on the entirety of their evidence. A jury is not bound to conclude that a witness who lies on one matter cannot be believed on another. But a rational jury will address the issue, consider why the person has told a lie, assess any explanation that is given and determine the impact that it has on the critical evidence in relation to the charged acts.[15]
[15]See R v CP [2000] VSCA 178, [23]–[24] (Chernov JA, Brooking and Ormiston JJA agreeing).
In assessing that explanation, there are a two relevant matters of context. First, as the jury were instructed, conformably with s 54D(2)(c)(i) of the Jury Directions Act 2015, people may not remember all of the details of a sexual offence or describe it in the same way each time. Trauma may affect people differently, including by affecting the way they recall such events or what they say about such events. Both truthful and untruthful accounts of sexual offences may have differences. These instructions were fortified by the evidence of Dr Flower.
Second, the complainant also gave evidence that she was concerned about the exercise book being misused or falling into the wrong hands, telling the jury that she believed that there might be a delay of up to six months before the exercise book was delivered to the police.
Even taking these two matters into account and allowing for the starting point that the jury having heard the complainant found her to be reliable, her explanation was, in our opinion, entirely implausible. We cannot accept that the complainant did not know, when she completed the exercise book in 2013, that the digital penetration of her by her father was wrong. She had involvement with the police since 2002 and DHS workers from when she was about eight years old. As a young child, she had told authorities that she knew it was wrong for people to touch her in a way that she felt was not appropriate. In her committal evidence, she said that by the age of 17 or 18, she was aware that sexual abuse by her father was wrong. Further, she was told by Detective Rattray to provide any details of sexual abuse by her father and, in the exercise book, she referred to incidents during which she sat on her father’s lap and he fondled her vagina. Those incidents were the only matters relating to sexual abuse contained in the exercise book.
The explanation given by the complainant was, as we have said, implausible. It significantly undermined her account of repeated digital penetration which formed the basis of the charge of incest. Once her explanation as to why she had not included the allegations earlier is rejected, which we consider it must be, this carries the further problem that there was no viable explanation in her evidence as to why she had not made the allegation at an earlier time.
It is possible, of course, that even in 2013 the complainant was embarrassed or humiliated by what she said had happened to her and that this led her to be reluctant to provide details. That is not what she said when she was asked in cross-examination to explain the failure to mention the most serious form of alleged offending. Rather, she gave an entirely implausible explanation. In assessing the reasons why the complainant gave that explanation it is relevant that, if believed, it would rebut any criticism of her evidence or suggestion that she was influenced by Detective Rattray’s email.
The complainant’s account that she could not read at the time she gave her statement to the police in July 2002 is also improbable. The evidence in this respect is not free from difficulty. The complainant was not cross-examined in the first trial about whether or not she was capable of reading when she made her statement to the Tasmanian police. Her school reports were not put to her in cross-examination. At the retrial, when this issue was raised in the context of the applicant’s unsuccessful application to have the complainant recalled in the second trial, the judge did not permit further cross-examination but on the agreed basis that the prosecution would not raise any Browne v Dunn point in relation to the matter.[16]
[16](1893) 6 R 67.
Notwithstanding this unsatisfactory state of affairs, the account of not being able to read, which we consider to be improbable, was a matter of some significance in any assessment by the jury of the complainant’s credibility. It was given in the context where the complainant was being challenged for her failure to refer to sexual offending in the statement. Further, it smacks of an opportunistic response to being asked to explain why she had attested to the statement. The answer does not explain why, if she had told the police that there had been sexual offending, there was no mention of it in the statement. For that reason, the answer does not meet the criticism inherent in the cross-examination relating to the omission but does suggest, strongly in our minds, a willingness to ward off any criticism of the account.
The other two matters are similar to each other and they do not carry quite the same sting as the omission from the exercise book in 2013 or the evidence about the complainant’s capacity to read in 2002. Nevertheless, they are consistent with a particular approach taken by the complainant to perceived difficulties or omissions in her evidence. We consider it most unlikely that the complainant was left with the impression that it was legitimate for her father to touch her ‘private parts’. We accept that, as the respondent submitted, there may be discussions with a child about what is appropriate for a parent or carer to do in the context or bathing, hygiene or medical care but we think it most unlikely that the complainant was left with the impression that there were no boundaries.
With the exception of the question whether the complainant could read when she was 11 years old, this is not a case in which there were objective facts that were inconsistent with the complainant’s evidence. The other three matters were internal to the complainant’s account and the doubt cast on the truthfulness of her explanations lay principally in their implausibility as a matter of human experience. In our opinion, although the four matters do not carry equal weight, taken together they demonstrate a willingness on the part of the complaint to mould her evidence in a way that seeks to bolster the credibility of her account by addressing actual or perceived problems with her evidence. Not only do they show problems with her evidence, but it is not possible to discount as a real and significant possibility that at least parts of her evidence relating to the charged acts were exaggerated or embellished.
Just as it was so for the jury, it is necessary for this Court to have regard to all of the evidence.
The veracity of the account of repeated digital penetration must also be seen in the light of a number of factors. First, as the applicant submits, the complainant’s evidence-in-chief was brief and, apart from two striking incidents, was general, describing a pattern of behaviour in very general terms. The two occasions that were very specific concerned the first incident in which the complainant said that she was tied to a chair and locked in a wardrobe and the second incident when she was tied to a chair and subjected to digital penetration, with her next memory being waking up frightened and in pain. The failure to mention the latter incident, even obliquely, in the 66-page written account is notable.
Second, the email from Detective Rattray strongly suggested that the police needed more detail if the matter was to progress. The complainant’s response, which included the statement that she did not know what the police ‘were after’ and the statement ‘nor do I have much of an idea what was actually done to me’, is problematic and raises questions about her later ability to recall a very specific, graphic and confronting episode.
Third, in considering whether there was any evidence that is inconsistent with the complainant’s evidence of the charged acts, it is necessary to take into account the significant forensic disadvantage under which the applicant laboured by reason of the delay.
Finally, it was relevant to the assessment of the evidence that defence counsel at trial presented a potential motive by the complainant to lie, namely that the complainant was motivated by the applicant’s failure to support her brother and evicting him from the house.
Having regard to all of these matters, and giving due weight to the fact that the jury heard and saw all of the evidence, we are driven to the conclusion that the jury must have had a doubt as to the applicant’s guilt. It was not open to the jury to accept the complainant’s evidence to the criminal standard.
Accordingly, the extension of time should be granted, leave to appeal against conviction granted and the appeal allowed. The convictions should be set aside and judgments of acquittal entered on the three charges.
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[2024] VSCA 209

19 September 2024