Parker v The Queen - [2022] SASCA 89

Supreme Court of South Australia
(Court of Appeal: Criminal)
PARKER v THE QUEEN
[2022] SASCA 89
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)
1 September 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Between July and August 1989, the appellant was alleged to have committed sexual offences against his 16-year-old adopted daughter. The first involved the appellant touching her breast in the car park of a video store. The second, third and fourth offences occurred at the family home and involved a further touching of the complainant’s breast, digital penetration of her vagina and an act of cunnilingus.
The appellant was convicted by majority verdict of a jury of two counts of indecent assault and two counts of unlawful sexual intercourse, contrary to ss 56 and 49(3) of the Criminal Law Consolidation Act 1935 (SA). He seeks permission to appeal against his convictions on the ground that the verdicts were unreasonable and cannot be supported by the evidence.
Held, per the Court, granting permission to appeal but dismissing the appeal:
1.The inconsistencies or difficulties with the complainant’s evidence in relation to the first offence, the inconsistencies between her evidence and other witnesses generally, and the failure of the complainant to raise the allegation of digital penetration in her first statement were all matters which the jury were reasonably entitled to resolve in favour of the complainant’s credibility and reliability, and did not require doubt as to the charged conduct.
2.The absence of corroboration and complaint evidence, and the forensic disadvantage suffered by the appellant due to the passage of time between the offending and trial, did not, even in combination with the other factors raised on appeal, require a reasonable doubt.

Criminal Law Consolidation Act 1935 (SA) ss 49(3), 56; Evidence Act 1929 (SA) ss 34CB, 34L(5), referred to.
Dansie v The Queen [2022] HCA 25; DES v The Queen [2020] SASCFC 32; Fennell v The Queen (2019) 93 ALJR 1219; Greensill v The Queen (2012) 37 VR 257; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; R v MAS (2013) 118 SASR 160; Tyrrell v The Queen [2019] VSCA 52, considered.

PARKER v THE QUEEN
[2022] SASCA 89
Court of Appeal – Criminal: Livesey P, Lovell and Doyle JJA

THE COURT: Following a trial by jury the appellant was convicted, by majority verdict, of two counts of indecent assault and two counts of unlawful sexual intercourse, contrary to ss 56 and 49(3) of the Criminal Law Consolidation Act 1935 (SA) respectively.
The appellant was tried on an Information which particularised the offending as having occurred against his adopted daughter on two separate occasions in 1989. The first occasion was two days after her sixteenth birthday and involved an allegation of indecent assault (Count 1). The second was a few weeks later, involving a further allegation of indecent assault (Count 2) and two acts of unlawful sexual intercourse, by digital penetration of the complainant’s vagina (Count 3) and cunnilingus (Count 4).
The appellant seeks permission to appeal against his convictions on the ground that the verdicts were unreasonable and unable to be supported by the evidence.
The prosecution case
The prosecution case at trial, based upon the complainant’s evidence, was that the appellant sexually assaulted the complainant on two separate occasions between July and August 1989.
The first occasion, relating to Count 1, occurred on 28 July 1989, two days after the complainant’s sixteenth birthday. The appellant had driven the complainant to an appointment at Modbury Hospital for her asthma. After the appointment, he drove her to a Blockbuster video store in Campbelltown. While parked in the carpark of the video store, the appellant showed the complainant a manilla folder containing pictures of naked dark-skinned women and asked her what she thought of them. He told her that she was beautiful, and that he had waited until she was 16 years old as that was the age of consent.
When she did not reply, the appellant asked her if he could touch her breast, to which she replied “no”. The appellant then placed his right hand underneath her shirt and bra, and on her left breast (Count 1). He pinched and twisted her nipple, and told her that her breast was soft. The incident lasted a minute or two, and ended when he leaned over to the glovebox of the car and pulled out a packet of cigarettes. He offered her a cigarette, which she accepted, and took one for himself. After they had each smoked a cigarette, the appellant told her not to tell anyone about what had happened, and they went into the video store.
The second occasion, relating to Counts 2 to 4, occurred about three weeks later. The complainant was alone in the lounge room of their family home when the appellant returned home from work for lunch. When the complainant entered the kitchen, the appellant approached her and hugged her. He thanked her for not telling anyone about the previous occasion, and asked if he could touch her breasts again. Despite her shaking her head to say “no”, he pulled up her t-shirt and touched her left breast under her clothing (Count 2). He was breathing heavily and asked her if she liked it. She did not respond and the touching concluded with the appellant asking her whether she knew what oral sex was. The complainant said “no”, that she did not know. The appellant then took her to his bedroom, told her to get onto his bed, and pulled her shorts and underwear down. The appellant inserted his fingers into her vagina (Count 3), and then performed cunnilingus on her (Count 4). When she tried to close her legs, he pushed them open again. The complainant asked him to stop on two occasions. After the second occasion, he did stop. He got up, pulled up the complainant’s pants, and wiped his face with a white handkerchief that he had removed from his pocket. He then hugged her, and asked her whether she would like to see his penis, to which she responded “no”. He asked her not to tell anyone what had happened, and then left the house.
The prosecution called three witnesses: the complainant, TT (the appellant’s youngest biological daughter), and Brevet Sergeant McDonald (the investigating officer). The prosecution had intended to call JM, the appellant’s former wife and the complainant’s adoptive mother at the time of the offending. However, she died in the week before trial, and so the prosecution relied instead on a statement made by her to Brevet Sergeant McDonald in 2019.
The complainant’s evidence
The complainant was born in July 1973, in Sri Lanka, where she lived in an orphanage with her older biological sister. She was brought to Australia with her sister and adopted by a couple in March 1976. She lived with these adoptive parents until she was six years old. She and her sister eventually came to live with the appellant and his wife, JM, at their home in Athelstone, and were formally adopted by them in November 1981 when the complainant was eight years old.
Following her adoption by the appellant and JM, the complainant initially lived with her biological sister and the appellant’s three biological children. By the time of the offending, only the youngest of the appellant’s biological children (TT, who is three years older than the complainant) still lived at home with the complainant and her biological sister. The complainant said that she had a strong relationship with her family, other than with the appellant, who was rarely at home and did not spend time with her.
The complainant gave evidence that she left school in March 1989, when she was in year 11, and was 15 years of age. She worked for a week or so at a bakery, and then worked at a Coles supermarket on a casual basis for a few months.
The complainant said that she suffered from asthma throughout her childhood, being first diagnosed when she was nine years of age. She regularly attended doctors’ appointments and, on a couple of occasions between the ages of 12 and 16, was admitted to Modbury Hospital for treatment of her asthma.
As to the charged conduct, the complainant’s evidence was to the effect summarised earlier in these reasons.
In September 1989, the complainant left home and moved into Crisis Care accommodation in Blackwood. The complainant acknowledged that her relationship with her mother was mixed; that they had had their good times and their bad times. However, she denied that she had left home because of her relationship with JM. On her evidence, she left home because of the appellant’s offending.
TT’s evidence
The prosecution also called TT, the youngest of the appellant’s three biological children. TT gave evidence about her parents’ employment, how often they were at home, and the appellant’s car. She said that she had a good relationship with her father at the time of the offending.
During cross examination, TT accepted that the complainant and JM had often argued prior to the complainant moving out. While acknowledging that JM was “strict”, TT described the complainant as “rebellious” and keen to move out of home. According to TT, the complainant would give JM a hard time, adding that while the complainant and JM initially got along quite well, the complainant had begun to distance herself by the time she moved out.
TT said that she had seen the complainant smoking and that this was a repeated cause of arguments between the complainant and JM, who would not let her smoke and wanted to know where she was getting cigarettes. She recalled witnessing the complainant steal money from JM’s purse and damage things in the family home. She described an occasion when the complainant had deliberately destroyed her shoes so that her parents would buy her a new pair. She said that the complainant once struck JM on the breast following an argument.
TT gave evidence contradicting the complainant’s statement that she had worked at Coles prior to the date when the offending was alleged to have occurred. Her recollection was that the complainant only began working at Coles after she had moved out of home.
TT explained that it was predominately JM who drove the complainant to places she needed to go (such as medical appointments), as the appellant was always busy with his work or needing to stay at home because he was on call. She acknowledged, however, that the appellant would sometimes take her and the complainant to the video store.
Brevet Sergeant McDonald’s evidence
Brevet Sergeant McDonald was the investigating officer in this matter. Through her, the prosecution tendered the complainant’s birth certificate and adoption record, as well as the statement taken from JM on 24 March 2019.
JM’s statement
JM was the complainant’s adoptive mother and the appellant’s wife at the time of the offending. As mentioned, she passed away a week before she was due to give evidence at trial. Her statement was read to the jury. It included the following.
JM married the appellant when she was 21 years of age. Together, they had three biological children: two daughters and a son. When their youngest child, TT, was around nine or 10 years old, JM advised the Department of Child Welfare that she and the appellant wished to be foster parents. This ultimately led to their adoption of the complainant and her sister.
JM described the complainant and her sister as “very difficult and quite naughty”. She acknowledged that she was a very strict and conservative parent, and that they had resisted her attempts to parent them. She explained that they never did any work around the house and that, on the odd occasion that she did attempt to get them to help, they would refuse and talk back to her.
JM said that the complainant suffered badly from asthma, and as a result frequently attended the Modbury Hospital. She recalled that the complainant wanted to smoke and that she had told her that she could not do so because of her asthma.
JM said that while appellant worked full time, she worked part time and was left in charge of the children. On her evidence, she would deal with any issues that arose, such as at school, and would take the complainant to appointments or anywhere else she needed to go. She recalled that the appellant did not have a lot of one-on-one time with the complainant, although he would sometimes visit her when she was in hospital with her asthma.
JM said that when the complainant was 15 or 16 years old, she wanted to do things that she was not allowed to do, such as go out at night. She recalled that the complainant was often upset with her. She said that one day, out of the blue, the complainant told her that a lady from the Department of Child Welfare was coming to pick her up, and that she was leaving home.
JM said that she had never seen any inappropriate behaviour between the appellant and the complainant, and that that none of the children had ever disclosed anything to her about the appellant nor said anything bad about him. She had separated from the appellant around six months after the complainant left home. She explained that they had been waiting for the children to grow up before doing so.
JM said that she had minimal subsequent contact with the complainant until they eventually reconciled. That said, she described their relationship even after that reconciliation as confined primarily to the exchange of letters, and occasional visits when the complainant came back to Adelaide from interstate.
Agreed facts
The prosecution also relied upon several agreed facts. Most of these related to formal matters not of significance to this appeal. However, agreed facts 8 and 9 are potentially significant:
Hospital Record
8. Brevet Sergeant Jasmin McDonald obtained [the complainant’s] medical records from Modbury Hospital for a check-up appointment. There is a note in the records that [the complainant] attended at Modbury Hospital for a check-up appointment for her asthma on 28 July 1989. A handwritten note on that date reads, ‘no problem with asthma since last visit. Has now quit school and is looking for a job – hasn’t yet found one.’
Blockbuster Video Store Campbelltown
9. Focus Video store was also located at 519 Lower North East Road Campbelltown from 1988 until it became Blockbuster Video Store in either 1992 or 1993.
The defence case
The defence case was that the alleged offending did not occur. Defence counsel emphasised the uncorroborated nature of the complainant’s evidence, together with several inconsistencies in the evidence said to undermine the complainant’s credibility and reliability. In particular, defence counsel pointed to aspects of the complainant’s evidence which conflicted with the evidence of TT and JM, and inconsistencies between statements made by the complainant prior to and during trial. Defence counsel also highlighted the significant forensic disadvantage suffered by the appellant as a result of the passage of over 30 years between the offending and the trial, including the inability of the defence to test the evidence of JM in cross examination. The defence case was that, when considered together, these matters left a reasonable doubt as to the appellant’s guilt of the charged offences.
The appellant was not called to give evidence. He suffers from a mild form of Alzheimer’s disease but was determined to be fit to plead at trial. No witnesses were called in the defence case.
The appeal
The appellant complains that the verdict on each count was unreasonable and unable to be supported by the evidence. In his particulars of this ground, as developed in written and oral submissions, the appellant relies upon several suggested inconsistencies and inadequacies in the evidence. For the purposes of analysis they may be grouped under the following topics:
1.the complainant’s evidence was uncorroborated and not aided by complaint evidence;
2.inconsistencies or difficulties with the complainant’s evidence in relation to Count 1 given the agreed fact that there was no Blockbuster video store at the time, the unlikelihood of the offending occurring in such a public place, the difficulties with her evidence in relation to the appellant smoking and knowing that the complainant smoked, and the evidence to the effect that it was JM and not the appellant who drove her to her medical appointments;
3.the failure of the appellant to mention the conduct the subject of Count 3 when first giving a statement to the police;
4.inconsistencies between the evidence of the complainant and the evidence of JM and TT; and
5.the appellant’s forensic disadvantage given that the allegations related to conduct that occurred over 30 years prior to the trial.
In considering these complaints, the Court’s task remains as expressed by the High Court in M v The Queen.[1] The question which the Court must ask itself is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.[2] Put another way, the Court must ask itself whether the jury must have, as distinct from might have, entertained a doubt about the accused’s guilt.[3]
[1]     M v The Queen (1994) 181 CLR 487; Dansie v The Queen [2022] HCA 25 at [8] (the Court).
[2]     M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ).
[3]     Libke v The Queen (2007) 230 CLR 559 at [113] (Heydon J); Pell v The Queen (2020) 268 CLR 123 at [44]-[45] (the Court).
The question is “one of fact which the Court must decide by making its own independent assessment of the evidence.”[4] In elaborating upon the approach to this question, the plurality in M v The Queen said:[5]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations
… To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[4] M v The Queen (1994) 181 CLR 487 at 492 (Mason CJ, Deane, Dawson and Toohey JJ).
[5] M v The Queen (1994) 181 CLR 487 at 493-495 (Mason CJ, Deane, Dawson and Toohey JJ).

In the ultimate analysis, the issue is “whether the Court’s assessment of the totality of the evidence leaves the Court with a reasonable doubt as to guilt which the Court cannot assuage by having regard to such advantage as the [trier of fact] can be taken to have had by reason of having seen and heard the evidence at trial.”[6]
[6] Dansie v The Queen [2022] HCA 25 at [16] (the Court).
In the present case, if the jury accepted beyond a reasonable doubt the credibility and reliability of the complainant’s evidence as to the charged conduct, then this provided a sufficient basis for the conviction of the appellant on each of the charged counts. The issue in this case was not the sufficiency of the evidence, but rather the credibility and reliability of the complainant’s evidence. Accordingly, the issue for this Court is whether the suggested inconsistencies and inadequacies in the evidence identified by the appellant undermined the complainant’s credit or reliability to the extent that a reasonable juror must have entertained a doubt about the appellant’s guilt.
In determining whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the Court must not disregard or discount either that the jury is the body entrusted with primary responsibility for determining whether the prosecution has established the accused’s guilt, or that the jury had the advantage of having seen and heard the witnesses in the context of the evidence as a whole at trial.
However, as this Court recently emphasised in DES v The Queen,[7] it does not follow that a jury’s apparent acceptance of the credibility and reliability of a complainant, or other witness, will be determinative. As the High Court explained in Fennell v The Queen:[8]
At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability.
[7] DES v The Queen [2020] SASCFC 32 at [80]-[83] (Doyle J, Kourakis CJ and Livesey J agreeing); see also the additional observations of Kourakis CJ on this topic at [2]-[4].
[8] Fennell v The Queen (2019) 93 ALJR 1219 at [81] (the Court) (footnotes omitted).
The Court’s observations in Pell v The Queen are also apposite in this context:[9]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[9] Pell v The Queen (2020) 268 CLR 123 at [39] (the Court) (footnotes omitted).
Finally, as the Court in Pell v The Queen also emphasised, in considering the significance of inconsistencies and other inadequacies in the evidence, it is important not to lose sight of the fact that the ultimate question is not whether it was nonetheless possible that the alleged offending did occur as alleged by the complainant; rather, the focus must be upon whether it was reasonably possible that the conduct alleged by the complainant did not occur, such that there was a reasonable doubt as to the defendant’s guilt.[10]
[10] Pell v The Queen (2020) 268 CLR 123 at [46] (the Court).
Against this background, it is appropriate to consider each of the matters relied upon by the appellant in support of his contention that the guilty verdicts in the present case were unreasonable.
Absence of corroboration and complaint evidence
The appellant relies upon the absence of any corroboration of the complainant’s evidence, and of any complaint evidence. The appellant’s reliance upon these matters was not developed in any detail in the appellant’s submissions. It was left at a very general level.
As to the absence of any corroboration, a judge is not required by any rule of law or practice to warn a jury that it is unsafe to convict on the uncorroborated evidence of an alleged victim of a sexual offence.[11] While the judge retains a discretion to direct the jury as to how it might approach the evidence of an alleged victim of a sexual offence, something more than the mere absence of corroboration will generally be required to render a judge’s failure to warn the jury in the trial of a sexual offence that it is unsafe to convict on the complainant’s uncorroborated evidence an appellable error.[12] A complainant’s evidence of such offending is often uncorroborated. Trials of these offences are of great consequence to the complainant, the accused and the community, and the jury is the tribunal best placed to determine the factual controversies they raise.[13]
[11] Evidence Act 1929 (SA), s 34L(5).
[12] R v MAS (2013) 118 SASR 160 at [32] (Kourakis CJ, Peek and Blue JJ).
[13] R v MAS (2013) 118 SASR 160 at [32] (Kourakis CJ, Peek and Blue JJ).
The trial judge in the present case gave clear directions in relation to the complainant’s evidence, emphasised that the prosecution case “rests entirely upon the complainant’s evidence”, and directed the jury to “scrutinise her evidence with great care.” Her Honour directed:
That then leaves me to give a direction about the complainant’s evidence generally. Of course, you would know that the prosecution’s case rests entirely upon the complainant’s evidence in regard to these four charges. Bearing that in mind, together with the disadvantage to the accused in light of the passage of time, what may be differences between parts of her evidence and prior statements she made to the police and at the hospital and what may be the differences between her evidence, the evidence of [TT] and the statement of [JM], you must scrutinise her evidence with great care.
You must not convict the accused unless after such scrutiny you are satisfied beyond reasonable doubt that she is a credible and reliable witness, that she has in fact told you the truth and that you are satisfied beyond reasonable doubt that the act, the subject of the particular charge, did in fact occur.
No complaint is made about her Honour’s directions in this regard. They appropriately framed the approach to the complainant’s evidence to be taken by the jury, and indeed to be taken by this Court in its independent review of the evidence.
While a relevant matter when considering the balance of the appellant’s complaints, and the cumulative significance of those complaints, the absence of any corroborative evidence did not of itself render the jury’s verdicts unreasonable.
As to the absence of any complaint evidence, there is not much that needs to be said about this. There is obviously no requirement that the prosecution lead complaint evidence. When complaint evidence is led, it may support the complainant’s credibility. However, the absence of complaint evidence does not render a verdict unreasonable, and did not do so in the present case. The complainant’s evidence, and the prosecution case, fell to be assessed on the evidence that was led.
The complainant’s evidence as to Count 1
The appellant challenged various aspects of the complainant’s evidence in relation to Count 1.
The first of these challenges related to the complainant’s evidence that the first incident took place in the carpark of a Blockbuster video store on Lower North East Road in Campbelltown. This evidence was inconsistent with the agreed fact to the effect that, while there was a Focus video store in that location in 1989, there was no Blockbuster video store in that location until 1992 or 1993.
In her evidence in chief the complainant said that, after her medical appointment on 28 July 1989 (being two days after her sixteenth birthday), the appellant drove her to a Blockbuster video store on Lower North East Road in Campbelltown, and parked the car at the back of the video store. She later said that, after the incident had occurred, they went into the store. She could recall walking up and down the aisles looking at videos.
Under cross examination, she said she was sure that it was a Blockbuster store at the time of the incident. When asked whether Blockbuster stores were large, and had distinctive layouts and blue signage, she agreed. When later pressed on the issue of whether the incident occurred in the car park of a Blockbuster video store, she held firm:
QIn fact I suggest that there wasn’t a Blockbuster video store at that location in July 1989.
AYes, there was.
QYou’re quite sure about that.
AYes.
QYou’re definite about that.
AYes.
QCouldn’t be mistaken.
ANo.
QBecause you’re very familiar with the Blockbuster signage.
AYes.
The cross examiner later returned to the topic:
QAnd you said you were sure it was a Blockbuster video store and you were familiar with the signage and the layout of those stores.
AYes.
QBy that do I take it that you’re sure it was a Blockbuster video store as opposed to some other video store.
AI was sure that it was a Blockbuster.
While maintaining that it was a Blockbuster video store at the time of the incident she had described, the complainant said that she knew that it was no longer there. She explained that on some of her visits back to Adelaide from Queensland “in the earlier days” she had seen the Blockbuster video store while driving past it. At some point she also became aware from driving past that it was no longer there.
There was undoubtedly an inconsistency between the complainant’s evidence and agreed fact 9 in this regard. It is also true that the complainant was fairly emphatic in her evidence as to the location of the first incident being the carpark of a Blockbuster video, rather than some other video store. These were matters that the jury were required to take into account when considering the credibility and reliability of the complainant’s evidence, both as to the location and occurrence of the first incident, and indeed more generally.
However, despite the emphatic nature of the complainant’s evidence on this topic, and despite her evidence being linked to a purported recollection of having entered the store and of the layout and signage of the store, we consider that the jury were reasonably entitled to accept that the complainant was simply mistaken as to the location being a Blockbuster, as opposed to Focus, video store. The jury might reasonably have thought that the focus of the complainant’s attention and recollection would have been on the incident that occurred in the car, rather than the franchise to which the video store belonged. They might reasonably have thought that her belief that it was Blockbuster video store was likely to have been a product of her having subsequently driven past that location after it had become a Blockbuster store, and otherwise having a general familiarity with the distinctive size, layout and blue signage of Blockbuster video stores. In our view, this inconsistency in the evidence as to location of the first incident was not one that required reasonable doubt as to the appellant’s guilt of the conduct the subject of Count 1. The inconsistency was capable of being resolved by the jury, having regard to their advantage in having seen and heard the complainant give her evidence.
The appellant challenged the likelihood of him choosing to first offend against the complainant in such a public location. The first point to make in response to this is that the complainant’s evidence was that the appellant parked the car “at the back of the video store”; that she did not recall seeing anybody around the car park at the time; and that the incident only lasted for a minute or two. Under cross-examination, she agreed that it was a fairly busy video rental shop at the time, although it would seem that this was intended as a general statement rather than a purported recollection as to whether the video store was busy at the time of the incident. Further, when asked whether she agreed that anyone driving by the shop could have seen into the car park, the complainant responded “[w]here we were situated, no.” She repeated that they were parked in a car park behind the store.
Secondly, and in any event, the significance, if any, of this suggested implausibility was a matter for the jury to consider when assessing the credibility and reliability of the complainant’s evidence. While it was relevant to take into account the likelihood of the appellant offending in a relatively public place, we do not regard the location of the offending as a very significant matter. We do not regard the location as giving rise to an implausibility or improbability that necessitated doubt about Count 1.
The next matter relied upon by the appellant in relation to Count 1 was the complainant’s evidence about smoking. The appellant contended that there was an inconsistency in the complainant’s evidence as to when she first recalled that the appellant smoked a cigarette while they were in the Blockbuster car park. He also contended that her evidence to the effect that the appellant knew that she smoked (because he had caught her smoking while she was working at Coles) was inconsistent with other evidence in the case as to when she worked at Coles.
It will be recalled that the complainant’s evidence was that her father offered her a cigarette while they sat in the car after he had touched her breast, and that they each then smoked a cigarette. During cross examination, it was put to the complainant that she had made a number of statements in relation to the case, and that she had not mentioned the appellant also smoking a cigarette in any of those statements. The complainant initially took issue with this, saying that she had mentioned it in the most recent statement she had made on the Friday of the week before the trial commenced. When she was then shown a copy of that statement, the complainant acknowledged that she had not mentioned the appellant smoking in that statement; albeit that this statement did include reference for the first time to the appellant having previously seen her smoking while she was on a break from her work at Coles. The cross examination continued:
QYou agree that in none of those statements have you ever mentioned the fact that your father smoked a cigarette in the car with you while you were in the Blockbuster car park.
ANo, that’s right.
QThe first time you’ve ever mentioned that was in court this week when the learned prosecutor was asking you questions.
AYes.
QIs there any reason that the first time you mentioned that was in court this week. Is that something you’d forgotten about.
AYes, something I’d forgotten about.
QAnd it only came back to you while you were in the witness box.
AYes.
QThat’s a memory that came back while you were actually sitting in the witness box.
AYes.
QWhy did you tell the members of the jury then that you mentioned it in your statement that you provided last Friday to the DPP.
AI’m sorry, I got confused.
QWhat did you get confused about.
AI thought I had mentioned it, sorry.
QYou just said it was only something that came to you this week in the witness box.
AYes, that’s right.
QYou couldn’t have told the DPP last Friday because you hadn’t remembered it at that stage.
ANo that’s right.
QIs there a reason why you told the court that you did tell the DPP last Friday.
AI told the DPP about [the appellant] seeing me with a cigarette. I hadn’t recalled what had happened in the car, that particular smoking the cigarette in the car with [the appellant].
QI suggest you didn’t recall it because it isn’t something that actually happened.
AYes, it did happen.
QThat’s something that you added in during your evidence earlier on this week.
ANo.
This evidence was given in a context in which there was no other evidence at the trial to suggest that the appellant was a smoker. The complainant’s own evidence was that she did not recall him being a smoker.
It can be seen that while the cross examination of the complainant identified an inconsistency in the complainant’s evidence as to when she first recalled that the appellant had himself smoked a cigarette in the car park, the complainant explained that this was because she had become confused. She had become confused with the fact that she had first mentioned that the appellant had previously seen her smoking in the statement she had provided the previous Friday. In our view, the jury were well placed to form their own view about the adequacy of this explanation, and the extent to which, if at all, it impacted upon the credibility or reliability of the complainant as to the critical issues in the case. The explanation given by the complainant was, it seems to us, a plausible one.
The appellant also relied upon an issue that arose in relation to the complainant’s evidence about her own smoking. Her evidence was that, prior to the incident in the Blockbuster car park, she had smoked on and off. In her evidence in chief, the complainant was asked whether she had any memory of the appellant ever seeing her smoking prior to that incident. The complainant said “yes” and described an occasion while she was working at Coles, and was in a café on her lunchbreak and smoking a cigarette. The appellant had walked into the café and saw her smoking, but told her not to worry, that he would not say anything. On the complainant’s evidence, she had left school in March 1989, before working at a bakery for a week, and then at Coles for “approximately three and a half months, maybe four months.” She was thus working at Coles in the lead up to the first incident, which she said occurred on 28 July 1989. The relevance of this evidence was obviously to explain how it was that the appellant might have known that the complainant would be interested in smoking a cigarette.
The appellant challenged the complainant’s evidence on this topic, not only on the basis that it was first raised in a statement given on the Friday before trial, but also because there was evidence that suggested that the complainant was not working at Coles at the time of the first incident. The evidence relied upon in this respect was two-fold. First, it was an agreed fact that the medical notes from the complainant’s hospital appointment on 28 July 1989 included a handwritten note that the complainant “has now quit school and is looking for a job – hasn’t yet found one”. Secondly, there was evidence from TT to the effect that while the complainant did work at Coles, her recollection was that this was after the complainant had left home, and so after September 1989.
In our view, any doubt arising from this aspect of the complainant’s evidence was again capable of being resolved by the jury. The jury might reasonably have preferred the complainant’s recollection as to the timing of her employment at Coles over that of TT. The jury might also have reconciled the complainant’s evidence with the note in the hospital records on the basis that the complainant had finished working at Coles by the end of July 1989, and was looking for some other job after her Coles job.

Alternatively, even if the jury considered that the complainant was mistaken about the timing of the Coles smoking incident relative to the occasion in the Blockbuster car park, the evidence at trial otherwise provided a basis for the appellant to have known of the complainant’s interest in smoking. Both JM and TT knew that the complainant smoked, and indeed described this as a matter about which the complainant and JM had often disagreed. It would not be surprising in this context for the appellant to have known of the complainant’s interest in smoking in July 1989, even if the Coles smoking incident did not occur until later in time.
Another challenge to the complainant’s evidence in relation to Count 1 was the complainant’s suggestion that the appellant had taken her to the medical appointment for her asthma at the hospital. It is true that the evidence of the JM and TT (and the complainant) was to the effect that it was JM, and not the appellant, who drove the complainant to places she needed to go, including her medical appointments. That said, we do not read this evidence as suggesting that the appellant never did any of the driving around. JM acknowledged that the appellant had at least visited the complainant when she was in hospital with her asthma, and we see no difficulty with the jury accepting that on at least one occasion he took her to an appointment.
A final matter raised in relation to Count 1 was the complainant’s evidence that the appellant said that he “was waiting until I was 16 because I was the age of consent”. The appellant pointed to the complainant’s later evidence during cross-examination that, at the time of giving evidence, she believed that 16 had been the age of consent in South Australia when the offending occurred (albeit that she could not recall whether that was her understanding at the time). The appellant contended on appeal that this evidence undermined the plausibility of the complainant’s evidence that the appellant said the words attributed to him. As we understand the submission, it was premised upon it being unlikely that the appellant would have been of the same mistaken belief as the complainant as to the age of consent, particularly if he had been waiting until that date to commit the offending.
Again, we do not consider this potential issue with the evidence to have been a matter of much moment. The appellant may have said something to this effect, without necessarily believing it to be true. If he did say something to this effect, then it may have led to the complainant believing that 16 was the age of consent. Alternatively, the jury might have considered that complainant was mistaken about this aspect of the events surrounding Count 1. The important point is that there were potential explanations for this evidence which the jury were entitled to consider were consistent with the complainant’s credibility and reliability as to key aspects of the conduct the subject of Count 1.
In summary, we are satisfied that the issues that arose in relation to the complainant’s evidence as to Count 1 were all matters that the jury were reasonably entitled to resolve in favour of the complainant’s credibility and reliability as to the elements of Count 1. The matters raised above did not, either individually or cumulatively, give rise to a doubt that the jury were incapable of resolving, or that otherwise required that they find the appellant not guilty of that count.
Count 3
The complainant’s evidence in relation to Count 3 was that, during the course of the second incident, the appellant put his fingers into her vagina. The complainant did not mention this aspect of the second incident when she first gave a statement to police in February 2018.
The appellant contended that this was an omission of a very significant aspect of the incident that she alleges occurred, not a matter of mere detail. He also emphasised that, when asked in her evidence about this omission from her initial statement, the complainant agreed that it was something she did not remember at the time of giving her statement:
QDo you agree with me that [in February 2018] you provided a detailed statement about what you say the accused had done to you.
AYes.
QDo you agree with me that you didn’t mention anything in that statement about the accused having put his fingers in your vagina.
AYes.
QIs that because when you provided that statement, that’s something you didn’t remember about the incident.
AAt that time, yes.
QSo at February 2018 you had forgotten that your father had put his fingers in your vagina on the day you said he came home from work.
AYes.
QBut since that time you’ve been able to remember that.
AYes.
While this was obviously a matter to be considered in assessing the complainant’s evidence in relation to Count 3, and more generally, it is significant that the complainant did include her allegation of digital penetration in a subsequent statement provided to the police. She included it in a statement she provided at the Holden Hill Police Station on 10 August 2019, which was well ahead of the trial.
The jury were given clear and accurate directions about this aspect of the evidence and, once again, it was a matter about which they were entitled to form their own view. They might reasonably have accepted that the complainant’s failure to mention the digital penetration when making her first statement did not undermine the credibility or reliability of her evidence at trial on this aspect of the second incident, let alone more generally.
Inconsistencies with the evidence of JM and TT
The appellant also relied upon some other suggested inconsistencies between the evidence given by the complainant, and the evidence given by TT and JM (through her statement read to the jury).
The appellant relied upon some differences between the way in which the complainant described her relationship with JM, and the way in which JM and TT described that relationship. It may be accepted that there were some differences in the tone and detail of their evidence on this topic. On the other hand, there was a consistent theme to the evidence of each; namely, that the complainant was a rebellious child and that this caused tensions in her relationship with JM given JM’s strict parenting style. In the context of what all witnesses agreed was a difficult relationship, we do not think that their differing recollections as to some matters of detail, and differing perspectives as to the causes of the difficulties, were of much significance. While this body of evidence informed the context within which the complainant’s evidence as to the charged conduct fell to be considered, we do not consider that it necessarily undermined her evidence in any material way.
The appellant challenged the complainant’s evidence as to the reason for her moving out of the family home in September 1989. According to the complainant, she moved out as a result of the appellant’s offending. The defence case was that she moved out because of the difficulties she was having in her relationship with JM. While the complainant denied that this was the reason she moved out, we do not think this contest in the evidence added much to the analysis in circumstances where the complainant acknowledged that there were significant tensions in her relationship with JM.
The appellant also challenged the complainant’s evidence as to Counts 2, 3 and 4 on the basis that there was no evidence from JM or TT to suggest that the appellant ever came home from work for lunch. Again, we do not think this was a matter of much moment. While the complainant said that the appellant did come home for lunch “every now and then”, she did not suggest that this was a regular occurrence. We do not consider that the complainant’s evidence in this respect was directly contradicted by the other evidence in the case, or was otherwise implausible.
Forensic disadvantage
The appellant submits that the delay of over 30 years between the offending and the trial “underscored” the unreasonable nature of the verdicts. He relied in this respect on the Victorian decisions in Tyrrell v The Queen[14] and Greensill v The Queen.[15]
[14] Tyrrell v The Queen [2019] VSCA 52 at [144]-[152] (Kaye, Niall and Weinberg JJA).
[15] Greensill v The Queen (2012) 37 VR 257 at [106]-[107] (Redlich, Osborn and Priest JJA).
These decisions both support the potential relevance of forensic disadvantage to the Court’s consideration of an appeal on the ground that a verdict is unreasonable. However, both were quite different cases in terms of the time that had passed between the alleged conduct and the trial, the significance of the inadequacies in the evidence, and the nature and degree of the forensic disadvantage suffered by the accused.
The trial judge summarised the significance of the forensic disadvantage suffered by the appellant in the present case in the following terms:
Let me turn to another direction which is in regard to as you are aware, the period of around 30 years between these allegations and this trial. The delay has had a significant impact on the accused’s ability to test these allegations through cross-examination of prosecution witnesses and to respond to them in his own case. Because of the passage of time prosecution witnesses cannot be effectively cross-examined about matters of detail you might think. We all understand that memories fade and end up generalities, if that.
Additionally, you know that the complainant’s mother has recently passed away. That means that her statement which was read out cannot be tested in cross-examination, nor can the accused cross-examine her about any matters that he may have wish to elicit evidence from her. That is not to say that you may speculate about what the evidence may have been but it is to draw your attention to the accused having a significant forensic disadvantage in regard to this matter and I direct you that you must take that disadvantage to the accused into account when you are scrutinising the evidence in this case.
It was accepted that this direction complied with the trial judge’s obligations under s 34CB of the Evidence Act. The direction accurately summarised the nature and potential significance of the appellant’s forensic disadvantage, and made it plain that the issue was one that ought to have informed the jury’s approach to various of the forensic issues arising on the evidence.
In undertaking the independent review of the evidence required of this Court, we have taken account of the appellant’s forensic disadvantage as described by the trial judge. While the passage of time undoubtedly disadvantaged the appellant’s ability to meet the prosecution case, we are not satisfied that this consideration, even when considered in combination with the other matters relied upon by the appellant, required reasonable doubt as to the charged conduct.
Conclusion
In summary, we do not consider that the matters raised by the appellant, either individually or cumulatively, were sufficient to require doubt as to any of the challenged convictions.
For the reasons given, we grant permission to appeal but dismiss the appeal.