Pate (a Pseudonym) v The Queen
[2019] VSCA 170
•31 July 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0149
| NELSON PATE (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of the identification of the alleged victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST and NIALL JJA, and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 July 2019 |
| DATE OF JUDGMENT: | 31 July 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 170 |
| JUDGMENT APPEALED FROM: | DPP v [Pate] (Unreported, County Court of Victoria, 28 May 2018, Judge Meredith) |
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CRIMINAL LAW – Appeal – Conviction – Rape, indecent assault and indecent act with or in the presence of a child under 16 – Offending against step-daughter between 2005 and 2010 – Whether conviction on charge of committing indecent act with child under 16 bad for uncertainty or latent duplicity – Whether complainant’s evidence flawed by reason of discrepancies and inadequacies making it incapable of supporting convictions – Whether verdicts unsafe and unsatisfactory – Conviction on one charge attended by uncertainty or latent duplicity – Appeal allowed – Conviction on charge of committing indecent act with child under 16 set aside – Appellant resentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC with Ms A Beech | Stary Norton Halphen |
| For the Respondent | Ms D Piekusis QC | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA:
An application for leave to appeal against conviction for sexual offences
When arraigned in the County Court, the applicant pleaded not guilty to an indictment which charged him with committing an indecent act with a child under 16[2] (one charge – charge 1); committing an indecent act in the presence of a child under 16[3] (one charge – charge 2); rape[4] (one charge – charge 3); and indecent assault[5] (two charges – charges 4 and 5). The indictment alleged that charges 1 and 2 occurred in a three year period between 1 November 2005 and 31 October 2008 (in the Melbourne suburb of Sydenham), and that charges 3, 4 and 5 occurred in a 22 month period between 1 January 2009 and 31 October 2010 (in the suburb of Delahey).
[2]Crimes Act 1958, s 47(1) (as then in force).
[3]Ibid.
[4]Crimes Act 1958, s 38(1).
[5]Crimes Act 1958, s 39(1) (as then in force).
All of the alleged offences were said to have been committed against ‘SB’, the daughter of the applicant’s partner. In the period embraced by the indictment, SB was aged between 13 and 17 years, and the applicant was aged between 29 and 34 years.
On 28 May 2018, a jury convicted the applicant on each charge.[6]
[6]On 29 June 2018, the trial judge imposed a total effective sentence of seven years and six months’ imprisonment, with a non-parole period of five years. See [91] below.
The applicant seeks leave to appeal against his conviction. Initially, he relied on a single ground (‘ground 1’) — relevant to the convictions on all charges — that asserted that the ‘verdict is unreasonable or cannot be supported having regard to the evidence’. In the course of the hearing in this Court, however, the applicant sought, and was granted, leave to rely on a second ground (‘ground 2’) — relevant only to the conviction on charge 1 — formulated as follows:
The description given by the complainant in her evidence of the act alleged by the Crown to constitute the offence the subject of charge 1 was so vague, ambiguous, uncertain and/or lacking in precision or particularity, that no finding could be made beyond reasonable doubt that the said act described by the complainant was the first occasion on which the applicant perpetrated that act and thereby committed the offence the subject of charge 1, with the consequence that there has been a substantial miscarriage of justice.
As will appear, I consider that ground 2 should succeed. The conviction on charge 1 should be set aside, necessitating resentencing of the applicant in the manner I will later set out.[7]
[7]See [89] et seq below.
I would not, however, uphold ground 1. In my view, the remaining convictions on charges 2 to 5 are not unsafe and unsatisfactory.
The evidence at trial
In order to understand the issues raised by the grounds of appeal, it is necessary to set out the evidence given at trial in some detail.
SB’s evidence
SB was aged 25 years when she gave evidence in the applicant’s trial. Her evidence included that her mother and father had ‘split’ when she was nine or ten years old. When she was ‘about ten’, she moved into a house in Delahey with her mother, her brother and the applicant. (Her mother also fell pregnant with her younger brother when they lived in that house.) Initially, she called the applicant by his first name, but afterwards called him ‘Dad’ for her mother’s sake. SB said the family moved to New Zealand ‘halfway through Grade 6’, when she was ‘about 13’. They lived in New Zealand for six months, before returning to Australia. When they returned, SB ‘would probably have been about 14’ (since she was in Year 7 at High School). The family moved into a unit in Sydenham, which had an ensuite and a main bathroom (as did premises in Delahey, into which the family later moved).
When she was a child, SB said, her relationship with the applicant was ‘quite good’ and they ‘always did fun things together’. At age 13 or 14 she ‘just started to feel very uncomfortable around him’, and ‘started to just distance [her]self from him’. SB started to feel uncomfortable because the applicant would ‘playfully’ slap her ‘bum’. She said to him, ‘Can you not do that?’, but the applicant just laughed at her. From the time they were in New Zealand, until SB was 16 or 17, the applicant would walk past her in the bathroom, take his clothes off, hop into the shower and wash in front of her. She could see that he was touching his penis and that it was hard.
The bathroom that SB used, she said, had frosted windows. She gave evidence that when she used the toilet or the shower — she ‘felt like it happened every time [she would] go have a shower’ — she thought she saw someone outside the window, although she could not recognise who the person was. When it happened, her brothers (and sometimes her mother) were at home. On one occasion she ‘wanted to find out if maybe it was [the applicant]’, and she saw him coming out of the laundry (the laundry having a door that led outside). SB said at times she also saw a figure outside her bedroom window. She took a note of the times that she saw a figure outside her window and kept it in her sock drawer. SB said that she remembered her mother telling her that she had found the notes, and the applicant ‘crying to [her] and saying he wouldn’t do that’.
When she ‘would have been around 17 or 18 years old’, SB said, the applicant caught her smoking. She asked him not to tell her mother and he said that he would not. SB gave the following evidence of what then happened:
… I’m not sure if [I] came out or if [the applicant] came to the door himself. I remember when he, I guess, came to my door, he was holding a pair of my underwear, which was, like, a G-string, I guess. And he said, ‘Is this – is this yours?’ and I said, ‘Yeah, it is.’ He goes, ‘I thought – I thought it was your mum’s underwear just because it’s quite sexy. So I thought it was hers.’ I said, ‘Okay,’ and he goes, ‘Can you put it on for me?’ … And I remember I said, ‘No.’ … And he said he would pay me money if I put it on for him. I think he said, ‘I’ll give you two – two/three hundred dollars if you put these on for me,’ and I remember I – I got quite angry and I’m pretty sure I told him to fuck off and he goes, ‘I’ll give you – I’ll give you, like, more money. I’ll give you, like, $500 if you put these on for me,’ and I don’t remember really what happened after then. I remember saying, ‘Fuck off,’ to him and I think I – I actually just closed my bedroom door cos [scil., because] I was angry and I remember he – I don’t know if I – again, if I came out or if he came to the door, but I remember he said to me afterwards – he goes, ‘Listen, I’m really sorry I did that,’ and we were standing, um, in the family room but like right next to the kitchen where the kitchen bench is. … and he said, ‘Oh, I’m sorry for, you know, offering you money or saying that to you.’ … I remember he gave me a hug, and as he was hugging me, um, he was kind of like nuzzling his face into my neck, and like getting just very close, and he’d – he ended up picking me up and putting me on the kitchen bench. And I remember I actually, um, pushed him away and I was just like, I can’t remember what I said, I just – I – I just wanted him to get off. I pushed him away and again, I think I just went to my room. Yeah, that’s all I remember. Just ‘cause he was – yeah, I felt like he was just invading my space, and he was putting his head so close into my neck as well.
SB also gave evidence of an incident involving a DVD. On one occasion, SB said, she asked to borrow the applicant’s laptop computer. When he gave it to her, the DVD drive was not properly closed. The applicant told her, ‘Just close it’, and walked away. When she did so, a pornographic video of a woman sucking a man’s penis played. SB then heard ‘a really big bang’ on her window, and, when she got up, she saw that the applicant had walked in from the back through the glass sliding doors. He was ‘kind of giggling and laughing’, and he said there was a cat at the side of the house. She told her mother what had happened. The applicant denied trying to look through her window or deliberately setting up a pornographic DVD. He was ‘very upset and crying’, saying, ‘You’re my daughter, I would never do that to you’. SB ‘started crying as well’. She said that she ‘believed him because he was just so upset about it’.
SB gave evidence that her feet used to ‘roll’. She had orthotics, but if she had been standing all day, her feet and calves would get quite sore. Both her mother and the applicant would massage her feet and calves to relieve the soreness. The applicant started to massage her feet when she started Year 7, she therefore would have been 13 or 14. When she was 14 or 15, the massages changed. They would occur at 11.00 or 12.00 at night when her mother and brothers were in bed. She said that the applicant
used to just rub like my feet and then my calves and then he said to me that to, I guess, fix the problem or to massage, ‘You need to massage the whole body to fix the problem’, so he would massage, I guess, up to my thighs and up to my bum and then he would, a lot of the time, tell me if I could pull my pants down so I’d pull them down to my crack because that’s, I guess, what I felt comfortable with, and I guess that was okay for a while, and then eventually when I’d do that he, himself, would pull my pants down underneath my bum, so I felt exposed. I felt like he could see my vagina. Um, and then yeah, he would – he’d pull them past my knees. So he’d pull them all the way down, I guess that’s on later occasions, and he’d rub all the way up to my inner thighs and he would, I guess, brush his thumbs on the outside of my vagina, so where – I don’t know the proper term for it – where my flaps were, and um, where my labia is, yeah.[8]
[8]This passage of evidence immediately precedes the passage set out below in [33].
Charge 1, committing an indecent act with a child under 16, was based on evidence that SB was lying on the lounge room floor of the family home on her stomach when the applicant touched the outside of her vagina while massaging her. For reasons that will become obvious, I will set the evidence on this charge out in more detail[9] when I come to consider the arguments advanced under the umbrella of ground 2, which contends that the evidence on charge 1 was vague, ambiguous, uncertain and lacking in precision or particularity.
[9]See [33] below.
Charge 2, committing an indecent act in the presence of a child under 16, related to an incident when SB ‘was just freshly in Year 7’, ‘only 13 or 14’, and the applicant was in the shower at the Sydenham premises. SB said that she had just had her hair cut and was standing in the bathroom at the sink straightening her hair. She was looking in the mirror and could see behind herself into the shower. Her evidence included:[10]
[10]Emphasis added to this and subsequent passages.
… I was getting ready for school and he’d hopped in the shower and I could see him, you know, I guess touching his penis and his penis was hard. … So, like I always would remember he would be looking down, you know, he’d be washing his body and um, he, I guess, he was um, stroking his penis, he was holding his penis with his full hands, and he’d be stroking it, you know, downwards, again and again … I just always remember his penis was hard and like it made me feel really uncomfortable, I guess.
And also:
He was, I guess, washing over his penis. So he was kind of bracing over it with his hands. He wasn’t holding his penis, but he was wiping, I guess, back and forth over his penis the whole time. … It was erect. So it was hard. … The whole time he was in the shower, for the five or ten minute time, he was constantly, I guess, washing over his penis with his hand wiping over it.
SB also gave the following evidence under cross-examination, in which she agreed that the applicant appeared to be ‘washing’ his erect penis:
[DEFENCE COUNSEL] In your evidence you mentioned that there was a time period of about five to ten minutes that you say [the applicant] was in the shower when you were in the bathroom. Do you remember giving some evidence about that?---Yes.
Do you say that's all the times that he was showering when you were in the bathroom that that would be going on for that five to ten minutes?---Yes.
…
Do you say for that period of five to ten minutes is a period of time when you say [the applicant is] in the shower and you're in the bathroom?---Yes.
And is that a period of time where you say at least you could see his penis?---Yes.
And it appears as though he’s washing his penis?---Yes.
And you say there were a number of times when you were at [the Sydenham premises] that that was happening and it was always for around about five or ten minutes that he’d be doing that and you’d still be in the bathroom?---Yes.
You could have just walked out, couldn’t you?---Yes.
Do you say in relation to [the Sydenham premises] that you actually remember any particular time that you say you saw him in the shower, saw his penis which was erect and saw him washing it?---Yes.
See, the reason you didn’t walk out when you see him in the shower, according to you, for five or ten minutes is that that just didn’t happen?---It did happen.
Charge 3, rape, related to a time when SB ‘would have been at least 16 years old’ and the ‘whole family ended up getting gastro’. SB also got a cold. Everyone else got better but she ‘was still quite unwell’. SB said that she had had high temperatures and sleep-walked. She ended up going to the family room where there was a couch. They were by then living in a house in Delahey, into which the family had moved when SB was in Year 9 or 10. SB gave evidence about what happened when she was lying on her stomach on the couch:
I like laid on the couch and watched TV and just kind of fell asleep and like I remember [the applicant] ended up on the couch, I guess on the end of the couch. I was on one end so laying down so my feet were, I guess, kind of touching him. … It would have been in the middle of the night it would have been like, I reckon three o’clock in the morning … everyone else was asleep … I was laying on the couch and I can’t remember specifically if he had asked me if he could rub my feet or not but he started to, I guess, massage my feet and massage my calves and then same thing where he would ask me, ‘Can you just pull down your pants a bit so I can like massage better?’ So, you know, I wouldn’t pull them all the way. I would only pull them to the top of, I guess where my crack is ... he wouldn’t say anything. He just kind of gradually, like, pulled down my shorts. I was wearing, like, sports shorts and then he would also pull down my underwear to kind of where my knees were. … And then he would continue I guess rubbing, he would rub, start rubbing my thighs up into my inner thighs, he would rub over my bum and yeah he, he was lightly brushing over my vagina with his thumb and um he ended up, ah, putting his finger um inside my vagina. … I don’t know how to describe it. I wouldn’t say he had completely inserted his finger. It was still inserted but he hadn’t pushed all the way in … it would last maybe five minutes … I could feel his thumb kind of touching me, touching my flap, my vaginal, my vaginal flap [in a circular motion] … He had put the tip of his thumb where I guess my vaginal hole is, and he had put it, I guess, inside but he didn’t put it all with force, it was just kind of like, I don’t know how to describe it, just lightly kind of in and out … I just laid there very tense and my body was all stiff. Um, but I didn’t say anything … I think I was a bit shocked and very uncomfortable … he did say like ‘Just relax, it’s fine’. Like, ‘Don’t be silly’, that’s what he would say, ‘Don't be silly, just relax’ …
There was also the following passage of evidence that related to charge 3:
[PROSECUTOR]: So he was massaging you and I think you said he was using his hands to massage you, is that right?---He was, yeah. So he had his hand, I guess, over where kind of my bum was.
Yes?---Or – so he had his fingers over and he had his thumb on my inner thigh in – and also in my vagina.
So what you’ve just shown there, is it sort of like a cupping action. Is that accurate?---Yeah. So I guess his hand was kind of over my leg or over my bum and then his thumb would go inside, yeah, my vagina. He’d be going upwards.
In terms of the part of his hand that entered your vagina, which part of his hand entered your vagina?---It would have been his thumb.
You could feel that?---Yeah, because I could feel his hand – well, the rest of his fingers resting on top, I guess, of the back of my bum and leg.
Charges 4 and 5, indecent assault, were part of a single incident, shortly following the applicant’s penetration of SB with his thumb. SB said that she had been sleep-walking and had returned to her bed. She then got up and lay down beside her younger brother who was asleep on a mattress in the lounge room in front of the television. SB’s evidence included the following:
I’d fallen asleep and, when I’d woken up, [younger brother] was gone and I was woken by [the applicant]. He was laying down next to me and he was touching my breasts. He was kind of like rubbing over them, fondling them, I guess, and he was very – he was talking very fast cos [scil., because] I kind of woke up quite startled and he was just telling me, ‘It’s okay. It’s okay, [SB]. Just relax. Be quiet. We don’t want to wake up your mum,’ and he also had been rubbing over my vagina over my clothes and I – like, I remember – like, I got up. I was just – yeah, I guess I was more in shock and then, because I was still sick at that time, I remember he had offered to rub Vicks[[11]] on my chest or on my boobs and I remember I was quite hesitant cos [scil., because] I – I was so, I guess, uncomfortable. I ended up just saying, ‘Yes,’ and he – I don’t know if he pulled down my top or lifted it up, but he went underneath my top and rubbed Vicks on my breasts. ... I woke up because [the applicant] was touching my breasts and he was, like very – he was very close to my face. I think I was just laying on my side and he was laying facing towards me. And I just remember he had his hands under my top and he was grabbing my boobs, touching my boobs, rubbing my boobs, um, yeah. And that’s – that's what woke me up and he was kind of, yeah, um, rubbing over my vagina over my clothes as well. He was kind of caressing my body ...
[11]This is a reference to ‘Vicks VapoRub’, which is a topical ointment applied to the chest for the purposes of cough suppression.
SB’s mother’s evidence
‘PT’, SB’s mother, gave evidence that she has four children, the applicant being the father of the two youngest. She met the applicant in 2002, when SB was ‘eight going on nine’. The applicant ‘seemed good with the kids [and] they liked him’. PT, the applicant and the children moved to New Zealand when SB was ‘about 12’, and they moved back to Melbourne when she ’12 and a half’, in her last year of primary school.
PT gave evidence that the applicant used the main bathroom — the same bathroom SB used — rather than the ensuite, so as to avoid waking her and the baby. She said that SB complained to her that the applicant would get into the shower while she was present. PT also gave evidence as to who occupied the bedrooms in the home.
SB, PT said, suffered from night terrors, and would run around screaming that she was being chased.
PT gave evidence that both she and the applicant massaged SB’s calves because of the problems that she had. PT said that the applicant massaged SB’s calves from when she was 13 until the time that she and the applicant broke up.
On one occasion when cleaning SB’s bedroom, PT said, she found a note in a set of drawers with dates and comments written on it, including: ‘It happened again. I saw someone walk past the bathroom window and the toilet window … I’m scared‘; and ‘It happened again. I don’t know what to do. Maybe I should tell Mum’. When she spoke to SB about it, SB said that a dark figure would go past when she was in the shower, and that she felt like someone was watching her when she was in the toilet. They thought it might have been the neighbour.
PT said that there was a time when the applicant set up a mattress in the lounge room for their son to have ‘a fun sort of campout’ watching a movie. When PT got up in the morning, SB was asleep on the mattress. (This conflicted with evidence that SB had given, that at some point on the night of the ‘campout’ she had returned to her own bed.)
On another occasion, PT said, she found the applicant dressed in a ‘hoodie’ pressed ‘flat’ against the house outside SB’s bedroom window. He denied looking in SB’s window, saying there was someone in the backyard.
When SB was ‘about 16’ she told PT that the applicant had rubbed Vicks on her ‘boobs’ on the night of the ‘campout’. PT also gave evidence that, after she and the applicant broke up, SB told her that the applicant had touched her between the legs ‘a few times’ between the ages of 15 and 18 when he massaged her.
After a complaint was made to police, PT took part in a recorded ‘pretext’ telephone conversation with the applicant on 1 September 2015 at the instigation of investigating police. An edited version (Exhibit E) was played to the jury. The ‘pretext’ upon which PT told the applicant that she wanted to speak to him was that police wanted to speak to her, and she wanted to know, ‘what the hell am I supposed to tell them?’. In the course of the conversation, the applicant said:
I mean, you can argue it as much as you want. I’ve never, like, touched her, like, you know, with intention to … touch her inappropriately. … she’s taken it the wrong way that I have touched her – try to touch her like that. … I have never – this is – this is me swearing to you … You know, I touched her … on the chest, when I put the Vicks all over her chest, you know, underneath her boobs right up to her stomach. I did that. …
NP’s evidence
‘NP’ gave evidence that she met SB when they were in Year 7 together, and they maintained a friendship up to Year 12. When SB was 18, she told NP that she suspected that the applicant had been watching her in the shower. SB said that she would see a figure walking past the bathroom window, but she was not a ‘hundred per cent sure’ it was the applicant. NP gave evidence that SB also told her that the applicant offered her money to walk around in a G-string at home, or would throw a G-string at her and say, ‘Put it on’.
JM’s evidence
‘JM’ started dating SB in November 2011. His evidence was that about a year after they started dating, SB told him that the applicant ‘would sometimes ask her to walk around the house in underwear’. SB also told him that ‘sometimes that she’s been in her bedroom getting changed, that she’d hear noises outside her bedroom window’, and she would see the applicant walking in from the backyard.
Sergeant Andrea Nash’s evidence
Sergeant Andrea Nash gave evidence that she received a complaint from SB against the applicant on 22 March 2015. She investigated the complaint, took various witness statements and charged the applicant. In cross-examination she confirmed that the applicant had ‘no criminal record’.
Defence case
The applicant neither gave evidence nor called evidence.
Ground 2: Is the verdict on charge 1 bad for uncertainty or latent duplicity?
It is convenient first to consider ground 2.
Under cover of ground 2, counsel for the applicant in effect submitted that the verdict on charge 1 was bad for latent duplicity or ambiguity. Although the prosecutor might have gone to the jury on the basis that she relied on the ‘first occasion’ that the activity alleged in the first charge occurred, there was nothing in the evidence which identified a ‘first occasion’, or differentiated the circumstances of any particular occasion from other similar occasions when the applicant allegedly touched the outside of SB’s vagina.
To understand how ground 2 is put, it is necessary to set out SB’s evidence — asserted at trial by the prosecution to be the foundation of charge 1 — in detail. SB said that her mother used to massage her feet, and then the applicant ‘used to do it as well’. She ‘would have been like 13, 14 years old’. SB described how the applicant used to rub her feet, then progress to ‘brush his thumbs on the outside of [her] vagina’. The prosecutor then led the following evidence from her:[12]
[12]Context is provided by the extract of evidence at [13] above, which immediately precedes this passage.
Do you remember a specific occasion when that occurred?---Um, the only time I can be specific is when I was a bit older, and that was in [the Delahey house]. I would have been 17, and I remember we got quite sick. I remember the whole family ended up getting gastro, and when I used to get quite sick and get a high temperature I used to, like, sleepwalk, would just kind of be delusional, I guess. And I remember I guess I sleepwalked that night and I remember like my mum and [the applicant] were still awake so it wasn’t too late, and they – they put me back to bed, and then I, um – I woke up again later, a bit you know, half asleep, sleepwalking, and I remember [the applicant] had put water on my – oh no, that wasn’t that time, sorry. I’m getting ahead of myself.
No, that’s okay. Okay?---Sorry, I’m like, jumping.
If we can take – you were describing massages that [the applicant] was giving you?---Yeah. Yes, yep.
And you said at later times he used to do certain things, earlier times I take it he did different things?---Yes.
Can we focus just on those earlier times when he massaged you?---Yeah.
How did he massage you? Where did these massages take place?---They would take place, um, I remember in the loungeroom. So where the TV was, I guess, because I’d lay down and watch TV.
...
What was in that room?---So we just had, like, the TV unit, the TV and then we had the couches – where the hallway is, we had like a couch along I guess kind of where the hallway is to cut of [scil, off] the lounge to make it almost a separate room, if that makes sense. Um, and there would be like a mat and I guess I was laying on the mat in front of the TV, yeah.
So you said you were laying on a mat?---Yeah.
How were you laying on a mat?---I was laying on my stomach, yeah.
And given that you were on a mat on your stomach?---Yeah.
How would [the applicant] approach you to massage your feet?---Um, oh, he’d just be like, ‘Do you want me to rub your feet,’ and I would say yes. I guess – yeah, that’s – pretty much happened, and yeah, he’s [sic] rub my feet and then he’d always end up working his way up and rub my bum and I guess just – just get into my inner thighs a bit, but there wasn’t any penetration or anything in that house.
...
You said that he first started off rubbing your feet but then moved up your legs?---Yeah.
When did that occur?---I don’t ---
How old were you when that started occurring?---I would have been – I don’t know, it could have been 14 or 15 but I can’t be specific, yeah.
When he did this when you were 14 or 15, when he first started doing it, do you remember the first occasion that he started doing that sort of thing?---I don’t remember the - exactly when and what time the first occasion was.
But do you remember when the massages changed in this way that you’ve described?---Um, I don’t remember, I guess the date or anything. I just – I remember it changed quite quickly. It didn’t last very long, yeah.
When you say it didn’t last very long, what do you mean?---I think because he used to rub my feet, I guess – you know, during the day when everyone was awake, when my mum was about, like so that was okay, and I guess if I was ever awake late on the weekends, you know, I’m not at school or whatever. Um, that’s when it started to change.
So where was everyone else in the house when your massages started to change?---So if I’m up pretty late, 11, 12 o’clock at night my mum was in bed. You know, my brothers are in bed. [A brother is] probably on the computer, ‘cause he was always on the computer or asleep, but again he was also younger than me, yeah.
And just describe how the massages changed?---So he used to – at the start I didn’t always used to lay on my stomach. I used to just kind of, you know, sit on the couch and he’d rub my feet and rub my calves and that’s it. And then, um, after he said that, you know, ‘You need to massage the whole body, you know, to fix it,’ um, he’d be like, he – he would tell me to lay down on my stomach, yeah.
Okay, and then---?---And---
Sorry?---And then um, yeah, he’d rub my feet, rub my calves, and – but he would – he’d move very quickly to up my inner thighs and my bum very quickly. It wouldn’t last very long I guess to my feet or anything. Yeah, it just made me feel really uncomfortable ‘cause as he – you know, he’d tell me to pull my pants down and I’d pull them down to just where my crack is, I guess. He would end up, you know, pulling them down further, like under my bum, and I just felt like his thumb – I just – I know it was his thumb that was quite close, very close to my inner thigh, like brushing up against, um, just the outside of my vagina very lightly.
When that used to happen, how long did that last, being the thumb rubbing the outside of your vagina, or brushing up, I think were your words. Brushing up on the outside of your vagina?---Yeah, um, it could last, ah, five, ten minutes until like I was very, very uncomfortable and I think I made it obvious I was uncomfortable. Because I guess I was tensing my body, ‘cause I – I was like obviously not enjoying myself. And I just remember he would say, like, ‘Relax, like it’s okay, like just relax.’ ‘Cause I guess he could feel that I was keeping my legs quite tense. Yeah, so yeah, it’d last about five, ten minutes, and then like if I’m like, ‘Okay, like that’s okay, like I don’t want anymore, that’s fine,’ yeah.
When he’d say ‘relax’ to you, did you ever say anything in response to him saying that?---I don’t remember ever saying anything. I think I was just, um, really uncomfortable and I – I was I guess a bit frightened to maybe say anything and say, like, ‘What you’re doing isn’t right,’ or, ‘you’re not making me feel comfortable.’ I was just worried that I would be in fault. I felt like I was being really stupid.
From the passage extracted immediately above it will be noticed that SB could not remember any specific occasion when the impugned conduct took place, and she could not remember when the ‘first occasion’ was. She said that the massages ‘changed’, but could not remember when. On a fair reading of her evidence, SB did not describe any particular occasion when the applicant lightly touched her vagina. Instead, her evidence was replete with descriptions of what the applicant would say or do; what used to occur; and what she used to do. Thus, it seems to me that, properly characterised, SB’s evidence amounted to a composite of all the occasions when similar activity was said to have occurred. Indeed, as senior counsel for the applicant pithily put it in oral argument, ‘you don’t really get much of “first occasion” out of her evidence’. He submitted that the use of expressions such as ‘would have’ means that the evidence ‘simply blurs with uncharged acts’.
I pause to note that the Summary of Prosecution Opening — which must outline ‘the manner in which the prosecution will put the case against the accused’ and ‘the acts, facts, matters and circumstances being relied on to support a finding of guilt’[13] — did not allege that charge 1 related to the ‘first occasion’ that a particular kind of activity had taken place. It simply described the basis of charge 1 in the following manner:
[13]Criminal Procedure Act 2009, s 182(2).
Charge 1 – Indecent act with a child under 16
19. On an occasion when the family were living at [the Sydenham premises], the accused began massaging the complainant’s feet with moisturiser in the loungeroom. It was late at night. The accused said to the complainant that it was not enough for her if he just rubbed her feet, and that he had to rub her whole body as well. He then rubbed up her thighs and started touching her around and on her vagina and labia. He continued doing this for 5-10 minutes.
In her final address, the prosecutor baldly asserted that the generic evidence given by SB related to the first occasion that the applicant touched SB’s vagina, without distinctly tying that assertion to any particular evidence. She said:[14]
So looking at those five charges and just recapping what [SB] said about those five occasions. With Charge 1, she said that she was about 14 or 15 years old when the massages began and [the applicant] was giving her massages to relieve her feet — the pain in her feet. She said when she was about 14 or 15 years old, those massages changed.
She said this happened, she was caught, and that they changed because [the applicant] told her that in order to fix the problem with her feet, he told her that ‘You need to massage the whole body’. So she said that [the applicant] began to rub her feet, then her calf, then her inner thighs and up to her buttocks. He then told [SB] to pull her underpants down, but she said that she only did so to her crack of her buttocks, because she felt uncomfortable.
She then explained that [the applicant] pulled her underpants down under her buttocks and she could feel his thumb brushing up very lightly against the outside of her vagina. On this first occasion that this occurred, which is the subject of this charge, Charge 1, she said she was lying on a mat in the lounge room and she was caught. So this is the conduct forming the basis of that charge, Charge 1 on the indictment and that’s a charge of committing an indecent act with a child under 16. The indecent act being the touching of [SB’s] vagina.
[14]Emphasis added.
After the close of the prosecution case, the applicant’s trial counsel had made the following submission to the trial judge in relation to charge 1:
As I perceive it, although the complainant gave general evidence about that type of conduct, I didn’t perceive she gave any evidence about a specific occasion that that had taken place. … [SB] needs to have given evidence about the first occasion that occurred. As I say, I’m happy to be corrected on this point, but as I read the transcript I didn’t see anything that properly did indicate that she was describing the first occasion.
The trial judge understood the submission to be a submission that there was no case to answer on charge 1, in that ‘there hasn’t been any evidence referrable to the first occasion’. A short time later, the judge referred counsel to NVD[15] and PPP,[16] and said, ‘I don’t know that it automatically follows that the count is bad because there’s no specific evidence given in relation to the first occasion’. And a little later still — for reasons that he did not articulate — counsel indicated that he was not persisting with a no case submission on charge 1.
[15]R v NVD (2007) 177 A Crim R 108 (‘NVD’).
[16]PPP v The Queen (2010) 27 VR 68 (’PPP’).
For the purposes of his charge, the trial judge gave the jury a ‘handout’ to aid them in understanding the elements of the offences. With respect to charge 1, it informed the jury that the charge represented ‘the first occasion’ that the applicant touched the outside of SB’s vagina while massaging her. Neither in the handout, nor in his oral directions, however, did the judge seek to identify from the evidence anything that could be identified as the first occasion. The relevant part of the handout was in the following terms:
Charge 1. Indecent act with a child under 16
Alleged incident: Between 1 November 2005 and 31 October 2008; whilst living at an address in [home address], [SB] was lying on the floor of the lounge room in front of the television, on a mat, on her stomach, and charge 1 represents the first occasion that [the applicant] whilst massaging her touched the outside of her vagina.
In order to find the accused guilty of this crime the prosecution must prove the following elements beyond reasonable doubt.
One - the accused committed the alleged act.
Two - the accused wilfully committed the alleged indecent act.
Three - the act occurred in indecent circumstances.
Four - the act was done with the complainant.
Five - the complainant was under the age of 16 when the act took place.
Six - the accused was not married to the complainant at the time the alleged act took place.
In her oral submissions, when the Court asked that she indicate any evidence that identified a ‘first occasion’, counsel for the respondent pointed to SB’s evidence that the massages she received ‘changed’. When pressed by the Court, however, counsel accepted that the evidence referred to related to the first occasion of a different type of massage, not to the first occasion of offending. In any event, so counsel submitted, there was no prejudice to the applicant ‘despite [SB] being unable to nominate that first occasion with any precision’. The applicant knew how the prosecution case was being put, and the ‘credibility of the complainant could still be tested’. Significantly, however, there was the following exchange with the Court:
[JUDGE]: So when we look at the evidence relating to charge 1, unless we can say that the evidence was capable of differentiating one occasion from others that were similar, that’s got to be the end of that conviction, doesn’t it?
[COUNSEL FOR THE RESPONDENT]: I maintain my submission regarding [SB’s evidence of when the massages changed], your Honour. But if your Honours find that that is insufficient to identify an occasion, being the occasion the massages changed, then yes, I agree with that, your Honours.
The practice of alleging the ‘first occasion’ in cases involving multiple instances of sexual offending has for some years been recognised as a legitimate pleading device to avoid potential problems of uncertainty and latent duplicity.[17] But, as was observed in PPP, the existence of the first occasion must be more than merely notional:[18]
It is now settled in this State, that in order to avoid latent ambiguity in the charge, it may be sufficient for the Crown to nominate the ‘first occasion’ within a specified period of time, if no greater degree of particularity is possible. When the Crown does tie itself to a ‘first occasion’ method of particulars, it undertakes to prove by evidence that a specific act answering the description of the offence charged was the first occasion of such conduct, that it occurred within the period specified in the count, and that no act answering the description of the offence charged occurred earlier, whether within the specified period or outside it. If the existence of the ‘first occasion’ within the dates specified is notional rather than evidence based, then the Crown will have failed to distinguish between the act it set out to prove and the uncharged acts of the same nature and latent duplicity will not have been avoided. But as NVD illustrates, that will not necessarily require that the conviction be quashed.
[17]Director of Public Prosecutions v His Honour Judge G D Lewis [1997] 1 VR 391; NVD; R v DWB (2008) 20 VR 112; R v Osborn [2009] VSCA 88; PPP; TC v The Queen [2011] VSCA 190 (‘TC’); Veysey v The Queen (2011) 33 VR 277; BN v The Queen [2011] VSCA 406.
[18]PPP, 86 [61] (Redlich JA, Neave JA and Lasry AJA agreeing) (emphasis added).
Buchanan JA made the same point in TC:[19]
A charged act may be particularised by referring to it as the first, last or other chronologically identified act in a series of similar uncharged acts.[20] The first occasion must be actual rather than notional. If the complainant cannot recall when the charged act occurred in a series of similar acts or differentiate in any other way between the charged act and other similar acts, the use of first occasion particularisation will be insufficient to overcome the problem of latent ambiguity.[21]
[19]TC, [22] (citations as in original; emphasis added).
[20]Director of Public Prosecutions v His Honour Judge G D Lewis [1997] 1 VR 391 at 398–400 (Tadgell JA); Johnson v Miller (1937) 59 CLR 467 at 486 (Dixon J).
[21] R v DWB (2008) 20 VR 112.
As I have indicated, I consider that, properly characterised, SB’s evidence relevant to charge 1 was a composite or amalgam of all of the episodes in which the applicant took part in similar activity (that is, touching or ‘brushing’ SB’s vagina in the course of a massage). There was nothing in the evidence to differentiate any particular occasion on which the specified indecent act occurred from any other. Hence, in my opinion, the conviction on charge 1 is bad for uncertainty or latent duplicity, and must be set aside.
I would thus grant leave to appeal against conviction on charge 1, allow the appeal and set aside the conviction on that charge. It will be necessary as a result to resentence the applicant in the manner set out below.[22]
[22]See [89] et seq below.
In allowing the appeal, the Court must set aside the conviction and either order a new trial or enter a judgment of acquittal.[23] When the possibility of setting aside the conviction on charge 1 was raised with the respondent’s counsel, she submitted that, should that occur, the Court should not order a retrial on charge 1, but should enter a judgment of acquittal. That was a fair and realistic submission for counsel to make, and it is one upon which the Court should act.
[23]Criminal Procedure Act 2009, s 277(1). In some circumstances the Court may also substitute a verdict.
Relevant principles: Unsafe and unsatisfactory verdicts
Before turning to consider ground 1, it is desirable to pay recognition to the principles which guide the Court in its consideration of a contention that a verdict is unsafe and unsatisfactory. They were recently set out in Conolly:[24]
By virtue of s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), this Court must allow an appeal against conviction if the jury’s verdict ‘is unreasonable or cannot be supported having regard to the evidence’. The test to be applied under that statutory limb is as formulated by Mason CJ, Deane, Dawson and Toohey JJ in M.[25] Thus, ‘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’.[26] The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury’s advantage in seeing and hearing the witnesses.[27] Generally, a reasonable doubt about guilt experienced by the appellate court is one that the jury should also have experienced. As was observed:[28]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
In written submissions, the respondent contended that ‘the test applicable to this ground’ was stated by Hayne J in Libke; that is, ‘the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’.[29] That statement is, however, apt to be misunderstood. Properly viewed, it does not constitute a gloss on the M test, let alone operate as a substitute for it. As this Court explained in Tyrrell:[30]
It is important to bear in mind that, in that passage, Hayne J did not restate the test in terms that were more stringent than that in which it was expressed in M. Rather, by emphasising that the question is whether the jury ‘must’ have entertained a doubt about the appellant’s guilt, Hayne J gave emphasis to the essential test, to be applied by the appellate court, as to whether it was ‘open’ to the jury to be so satisfied beyond reasonable doubt.
[24]Conolly (a Pseudonym) v The Queen [2019] VSCA 125, [7]–[8] (Priest, Beach and Kyrou) (citations as in original).
[25]M v The Queen (1994) 181 CLR 487 (‘M’).
[26]Ibid 493.
[27]M, 492–4; R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
[28]M, 494.
[29]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J) (‘Libke’) (emphasis in the original).
[30]Tyrrell v The Queen [2019] VSCA 52, [70] (Kaye, Niall and Weinberg JJA) (‘Tyrrell’).
The applicant’s submissions on the ‘unsafe and satisfactory’ ground
In oral submissions, counsel for the applicant submitted that the evidence in support of the five charges ‘suffers from a number of inconsistencies, discrepancies, some implausibilities, some improbabilities’, the ‘cumulation or aggregation’ of which is such that the Court ‘will’ hold that a reasonable jury could not have been persuaded of guilt beyond reasonable doubt. That submission echoed the contention in the written case that SB’s evidence ‘was so inherently flawed by reason of the discrepancies and inadequacies that it lacks the necessary probative force to support a convictions [sic]’. Five principal arguments were advanced.
First, the applicant’s counsel relied on the differing accounts that SB gave as to when the events founding charges 3, 4 and 5 occurred. Thus, in her first statement to police, made 28 April 2015, SB said that the events constituting charge 3, rape, took place close to Mothers’ Day (that is, May) in 2011. She recalled that she had been sick the previous week with ‘gastro’. Subsequently obtained medical records revealed, however, that the bout of gastro was in September 2009. As a result, SB made a ‘supplementary statement’ on 27 July 2016, in which she said that she remembered going to the doctor for ‘gastro symptoms’, but could not remember the date, the medical records showing that she went to the doctor on 16 September 2009. During her evidence at committal, SB’s first statement was amended to say that she ‘was 16, almost 17 years old’ when the events making up charge 3 took place. She ‘was still in High School, in Year 11’. It ‘was the month of September 2009 … near Fathers’ Day’.
Counsel for the applicant submitted that there is a two year difference between the accounts, SB having only corrected herself once the medical records were obtained. It was contended that such a mistake is implausible, particularly given that her first statement was made not very long after the incident was said to have occurred, in circumstances where SB had spoken of the care and certainty with which she gave her initial account in that statement. Furthermore, counsel submitted that when SB gave her original version of events, she had said that the relevant offending was proximate to her starting up a YouTube channel and starting make-up school, at the end of Year 12. In September of 2009, counsel submitted, SB was in Year 11; had not started make-up school; and did not have her YouTube channel up and running.
Secondly, with respect to the incidents founding charge 3, SB said in her first statement to police that, ‘I then remember [the applicant’s] finger went inside my vagina’. It was only when giving evidence at trial, counsel submitted, that SB altered her account to allege that the applicant penetrated her with his thumb, rather than a finger. This discrepancy, counsel argued, has an adverse effect on the credibility of SB’s version of events.
Thirdly, so counsel for the applicant submitted, there are a number of other implausible aspects of SB’s version of events. Thus, SB alleged that the incidents making up charges 1, 3, 4 and 5 occurred in exposed and accessible areas of the family residence, usually when all family members were at home. Further, despite the events related to charge 3, the following night SB was still prepared to sleep in the lounge room (which, on the evidence, was just outside the applicant’s bedroom). It is not credible that SB did not do more to avoid the applicant, given her age and the absence of any threats of force or violence. Counsel submitted that it is also not believable that SB would agree to allow the applicant to rub Vicks on her chest after the events relating to charges 4 and 5. In relation to charge 2, counsel said it was not credible that SB remained while the applicant showered in front of her, in circumstances where she could have walked out and could have locked the door. Moreover, with respect to charge 2, counsel submitted orally that the evidence established no more than that the applicant was ‘washing’ his penis, which cannot be an indecent act. As counsel put it: ‘It’s not much of an offence. Indeed, it’s just a man in the shower with an erect penis, having a shower … it’s got to be an indecent act and just washing yourself doesn’t cross the line’. And, so counsel submitted, albeit that there was a mirror, SB ‘is facing the other way‘. Finally, in circumstances where the incident with the pornographic DVD is said to have occurred after the charged events, it is somewhat incongruous that SB said that she believed the applicant when he cried and denied deliberately setting up the laptop and spying.
Fourthly, the applicant’s counsel argued that SB’s evidence conflicted in a number of respects with that of other witnesses. Hence, it was argued that PT’s evidence with respect to the incident concerning the mattress in the lounge room was inconsistent with SB’s evidence, since PT said this incident occurred in 2012, and she noted that SB was still asleep on the mattress in the morning. SB, on the other hand, said that the mattress incident occurred in 2009, and that she went back to bed in her own room after the events founding charges 4 and 5. Further, PT did not mention the DVD incident. Such a remarkable event, counsel submitted, would not be forgotten. Additionally, SB only mentioned one incident when the applicant asked her to wear a G-string, whereas JM and NP gave evidence that she complained to them that it happened all the time. Finally, SB said that she showed JM some paragraphs that she had written about her allegations, but JM made no mention of that occurring. In oral submissions, counsel for the applicant also argued that, notwithstanding SB’s apparent maturity and understanding of right and wrong, ‘there’s a real delay in the making of any complaint’, such delay impinging upon SB’s credibility and reliability.
Fifthly, counsel for the applicant submitted, the allegations founding charges 3, 4 and 5, must be viewed against SB’s own evidence that she was ‘delusional’ earlier in the relevant evening.
In oral submissions, counsel drew attention to the fact that the informant gave evidence in the trial that the applicant had no prior convictions, and submitted that, when making an independent assessment of the evidence, the Court should take into account that a man of good character is presumed to be incapable of committing the crime with which he is charged. Counsel also submitted that the Court should not use as a ‘make-weight’ the fact that the applicant did not give evidence.
In light of the inconsistencies, discrepancies, implausibilities, improbabilities and other identified matters, counsel submitted, the jury should have had a reasonable doubt about the applicant’s guilt on each charge. Making its own independent assessment of the evidence, the Court should conclude that it simply was not open to the jury to convict.
The respondent’s submissions on the ‘unsafe and satisfactory’ ground
In written submissions, counsel for the respondent contended that the only possible conclusion that the Court could draw is that it was open to the jury to convict the applicant. SB’s evidence, it was submitted, ‘was cogent and convincing notwithstanding the matters raised by the applicant in his written case’.
First, so counsel for the respondent submitted, there was nothing remarkable about the supposed divergence in SB’s evidence about dates. What was important is that she clearly connected the offending to a bout of ‘gastro’ that she suffered, which in turn could be linked by medical records to a relatively confined period of time. It was not unusual for there to be such discrepancies in ‘historical’ cases of sexual offending where the complainant was a child when the relevant events occurred.
Secondly, as to the suggestion that SB had changed her evidence to say that she had been penetrated with a thumb rather than a finger, counsel submitted that the matter was satisfactorily explained in the following passage of SB’s cross-examination by the applicant’s counsel:
You described to us yesterday as I understand it that you were lying on your front and he’d been massaging your buttocks and the inner thigh, as you’ve described, with the thumbs in effect going under your inner thigh and initially brushing against your vagina?---Yep.
Do you remember describing that?---M’hmm.
And you described yesterday, you went on to say at some stage he’d put one of his fingers in your vagina?---Yeah.
That’s what you’d put, isn’t it, in that first statement you made in April of 2015. You’d said that he put one of his fingers in your vagina?---Yes.
This morning when you were asked about it you said that it was one of his thumbs that went into your vagina?---I don’t see really – finger, thumb, they’re both a finger.
It’s not the case, is it, that you’d thought to yourself that you’d been describing it that it didn’t really make sense, that it’d be one of his other fingers so you felt you had to change it and say, ‘Oh, it must have been his thumb’?---They’re all phalanges, so I don’t – I don’t – I don’t understand what you want me to say.
Do you say that you just would use the word ‘finger’ throughout in your statement and previously because a thumb can be medically speaking referred to as a finger, have I got that right?---Yeah.
Thirdly, as to the submission that it was implausible that the offending would occur in open areas of the family home when others were in the vicinity, counsel for the respondent submitted that there is nothing unusual about that aspect in cases such as this. In any event, the evidence suggested that the incidents founding charges 1, 3, 4 and 5 occurred late at night.
As to the submission concerning SB’s willingness to sleep in the lounge room after the alleged digital rape, the respondent’s counsel pointed to the following passage in SB’s re-examination:
Why didn’t you stay in your bedroom on that second night?---Well, he wasn’t – he wasn’t up when I went out. He – he wasn’t there, so I didn’t – I guess I didn’t expect him – I didn’t expect to wake up to him being there and I thought I would have been fine. I – I just felt like – yeah, I – I don’t know. It’s just I didn’t think he would come out in the middle of the night, so I just thought it would be fine.
So far as the claimed incongruity of SB permitting the applicant to rub Vicks on her chest after the events constituting charges 4 and 5 was concerned, the respondent’s counsel contended that this must be viewed through the ‘prism’ of the relationship that existed between the applicant and his step-daughter. When so viewed, it is not at all perplexing. Much the same point could be made with respect to the argument that SB did not do more to avoid the applicant.
With respect to the suggestion that SB could have walked out of the bathroom when the applicant showered in front of her, the respondent’s counsel relied on the following passage from SB’s re-examination:
Why didn’t you walk away?---I didn’t want to make a big deal out of it. I – I would definitely like, I guess, rush out. So I would try to do my hair quite quickly or straighten it quite quickly and leave as soon as I could. Um, but I was – I didn’t want to make a big deal about it because I figured, if he’s not making a big deal about it, maybe I’m just being stupid and sensitive, because it must be normal, because no one’s told me that this is wrong.
The applicant’s argument concerning the DVD incident, the respondent’s counsel submitted, lacks logical force. It was submitted that the mere fact that the applicant had previously offended against SB did not mean that she was bound to assume, in the face of his tears and denials, that he had deliberately done something wrong.
Fourthly, as to the supposed inconsistencies between SB’s evidence and that of other witnesses, counsel for the respondent submitted that two of the four alleged inconsistencies are not inconsistencies at all, but constituted the failure of a witness to mention a particular event (which, in any event, the witness was not questioned about). The other inconsistencies are no more than the product of human frailty when it comes to recollecting and recounting events which took place years before.
Fifthly, the respondent’s counsel submitted that it is not clear that SB’s first reference to being ‘delusional’ was tied to a particular event. SB gave the following evidence:
… I would have been 17, and I remember we got quite sick. I remember the whole family ended up getting gastro, and when I used to get quite sick and get a high temperature I used to, like, sleepwalk, would just kind of be delusional, I guess. And I remember I guess I sleepwalked that night and I remember like my mum and [the applicant] were still awake so it wasn’t too late, and they – they put me back to bed, and then I, um – I woke up again later, a bit you know, half asleep, sleepwalking, and I remember [the applicant] had put water on my – oh no, that wasn’t that time, sorry. I’m getting ahead of myself.
Counsel for the respondent also pointed out that, although SB was not distinctly cross-examined about whether she was delusional at the time that the events establishing charge 3 were concerned, she was cross-examined about her state relevant to charges 4 and 5:
On this night [when the applicant rubbed on Vicks], you say, as I understand it, you were still sick?---Yes.
You’d been sleep – sleepwalking earlier that night?---Yes.
Were you delusional that night?---I was half asleep, yes.
Not the case, given all of that, that you’re not really sure whether these happened or not?---I’m sure that they happened.
In oral submissions, counsel for the respondent made two distinct submissions that were not to be found in the respondent’s written case.
First, counsel submitted that in making our own independent assessment of the evidence, and when assessing SB’s credibility and reliability, by virtue of ss 4A(2) and 54D(2) of the Jury Directions Act 2015, the members of the Court were required to take into account that differences in SB’s account may be relevant to the assessment of her credibility and reliability; and that experience shows that people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; trauma may affect different people differently, including by affecting how they recall events; and it is common for there to be differences in accounts of a sexual offence. Further, both truthful and untruthful accounts of a sexual offence may contain differences, and it is up to the Court to decide whether or not any differences in SB’s account are important in assessing her credibility and reliability, and whether the Court believes all, some or none of her evidence.
With respect, whether or not the provisions of ss 4A and 54D are directly applicable to the task that this Court must undertake, the various considerations given statutory recognition in s 54D are all matters that the Court routinely would take into account when considering an application such as the present. Any application of s 54D would not affect the manner in which the Court has typically assessed the evidence of complainants in cases such as the present.
Secondly, although she herself had not viewed SB’s recorded evidence — so that she could not say that any aspect of it might be relevant to an assessment of SB’s credibility and reliability — counsel for the respondent made the somewhat unfortunate submission that
if your Honours reach the point where you had determined upon your own independent assessment of the evidence that [it was not] open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty, then I would ask that your Honours look at that recording because the jury had had the advantage of seeing the complainant’s evidence and hearing it.
As was observed by a member of the Court in the course of discussion, the submission amounted to this:
‘If you’re going to decide against us, go away and look at the whole of the video unassisted by any submission as to which part might or might not be relevant. But you can’t decide against us unless you do.’
There are a number of palpable difficulties attending the submission.
First, this Court’s function in a case such as this is not inquisitorial. Proceedings in this Court remain adversarial, so that to a major extent it is for the parties to decide what material will be put before the Court, and what submissions will be made as to the use of that material.
Secondly, counsel have a duty to press the Court only with such evidence and submissions as are relevant to the exercise of the Court’s functions. In circumstances where counsel for the respondent had not seen (or heard) the recorded evidence, she was in no position to contend that something relevant to the Court’s task might be garnered from the Court viewing (and listening to) it.
Thirdly, the invitation to the Court to view the recorded evidence if provisionally minded to decide the case in a particular way, carries with it the tacit in terrorem suggestion that if the Court fails to do so, the Court will fall into error amenable to appeal.
Fourthly, throwing the responsibility for viewing the recorded evidence into the Court’s lap — should the Court permit such a course — has procedural fairness repercussions. If the Court of its own initiative viewed the recorded evidence, and, having done so, was minded either to decide the case (or make an adverse finding or observation), based on that viewing, it might be said that the Court would need to draw the matter to the attention of the parties, and give them a further opportunity to be heard. Indeed, when counsel for the respondent was asked whether the Court would be obliged as a matter of procedural fairness to bring such a matter to the attention of the parties — notwithstanding that no submission previously had been made with respect to it — counsel responded; ‘I can see that possibility arising, yes’. The ramifications for the orderly conduct of appellate cases such as this are patent.
Ultimately, the Court did not take up the invitation to view the recorded evidence of SB. We could see no necessity to do so. As was observed in SKA:[31]
The account given and the language used by witnesses, which are available by way of transcript, are usually sufficient for a review of evidence. It is to be expected that if there is something which may affect a court’s view of the evidence, which can only be discerned visually or by sound, it can and will be identified. Absent this purpose it is not possible to conclude that a court is obliged to go further and view a recording of evidence. There must be something in the circumstances of the case which necessitates such an approach.
[31]SKA v The Queen (2011) 243 CLR 400, 411 [31] (French CJ, Gummow and Kiefel JJ).
Discussion
I am not persuaded that the jury should have entertained a reasonable doubt about the applicant’s guilt on any (or all) of the charges he faced.
In the main, as has been discussed, the prosecution case depended upon SB’s evidence. The jury had the advantage of seeing and hearing her give evidence, and, to that extent, were in a better position than the members of this Court to assess its truthfulness, credibility and reliability. Whether the suggested inconsistencies advanced by the applicant’s counsel concerning SB’s evidence were adverse to her credibility and reliability to the extent that they should have provoked a reasonable doubt as to the applicant’s guilt on any charge were matters that it was well within the capacity of the jury to assess. Having made my own examination of the whole of the evidence, I consider that it was open to the jury to convict. In my view, there is nothing which inevitably should have engendered a reasonable doubt in the collective mind of the jury.
It seems to me that the two most significant claimed inconsistencies raised by the applicant related, first, to SB’s evidence as to the time when charges 3, 4 and 5 were said to have occurred; and, secondly, to her evidence as to whether the applicant penetrated her vagina with his thumb or his finger (relevant to charge 3).
As to the first of those matters, it must be remembered that, when endeavouring to fix the time at which the critical events occurred, SB was attempting to recollect events that had occurred several years earlier, when she was an adolescent. Given those circumstances, it is unsurprising that her memory as to particular dates was imprecise. Importantly, however, an apparently consistent feature of SB’s recollection was that the incidents critical to charges 3, 4 and 5 coincided with a bout of ‘gastro’ that she suffered. The available medical records tended to show that her initial recollection that the crucial events occurred around Mothers’ Day in (May) 2011 may have been wrong, since the records showed that she had consulted a general practitioner for gastro around Fathers’ Day in (September) 2009. In my view, the jury were well able to assess whether the alleged discrepancy between SB’s accounts as to when essential events occurred impinged on her credibility or reliability to the extent that her evidence was incapable of acceptance on critical matters.
With respect to the second matter, I consider that it was open to the jury to be satisfied beyond reasonable doubt that SB was penetrated digitally. In the passage of evidence set out above, she explained what she intended by her evidence.[32] Once more, I consider that the jury were capable of assessing whether there were discrepancies or inconsistencies in her account (or accounts) and whether any such discrepancies or inconsistencies should have led them to have a reasonable doubt.
[32]See [58] above.
Turning briefly to the supposedly implausible or incongruous aspects of SB’s version of events relied upon by the applicant’s counsel,[33] it is enough to say that the respondent’s arguments generally should be accepted.[34] In my view, the suggestions that it was implausible that charges 1, 3, 4 and 5 would have occurred in open areas of the home when others were in the vicinity; that it is incongruous that SB would have been prepared to sleep in the lounge room after the events founding charge 3; that it is not believable that SB would permit the applicant to rub Vicks on her chest following the incidents making up charges 4 and 5; that it is odd that SB did not do more to avoid the applicant; that SB could simply have walked out of the bathroom if the shower allegations were true; and that it is not credible that SB would have believed the applicant’s denials concerned with the DVD incident, are all matters that the jury were capable of evaluating. To my mind, whether considered individually or collectively, none of the matters suggested to be implausible or incongruous necessarily dictated that the jury ought to have entertained a reasonable doubt about the applicant’s guilt.
[33]See [51] above.
[34]See [59]-[63] above.
The same conclusion should be drawn concerning the supposed inconsistencies between SB’s evidence and that of other witnesses.[35] In my view, neither the fact that PT did not mention the ‘DVD confrontation’ in her evidence, nor the fact that JM made no mention of reading some paragraphs written by SB, is necessarily inconsistent with SB’s evidence. Moreover, I consider that the asserted inconsistency between SB’s evidence and her mother’s as to whether she was on the mattress in the lounge room in the morning after the events relating to charges 4 and 5; and the further asserted inconsistency between SB’s evidence and other witnesses concerning the G-string, are of minor significance (at best). All of the asserted inconsistencies were matters that the jury were capable of properly assessing. They could not inevitably have led the jury to have a reasonable doubt about the applicant’s guilt.
[35]See [52] above.
Given the attention given in oral argument to charge 2, I should observe that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. In essence, counsel submitted that the evidence established no more than that the applicant was washing his penis while showering. That submission cannot be accepted. Viewing the evidence in the fashion most favourable to the applicant, the evidence was capable of establishing that the applicant deliberately disrobed and showered naked in a bathroom also occupied by an adolescent female — who was in a position to see what he was doing — and washed his erect penis in her presence. It was open to find that, according to contemporary standards of modesty and decency,[36] so much was an indecent act in the presence of a child under 16.[37]
[36]See R v Court [1989] AC 28, 42–3; AK v Western Australia (2008) 232 CLR 438, 472-3 [95].
[37]See R v Harkin (1989) 38 A Crim R 296; R v RL [2009] VSCA 95; Sabet v The Queen [2011] VSCA 124; R v C, M (2014) 246 A Crim R 21; SLJ v The Queen (2013) 39 VR 514.
Finally, with respect to the submission that SB was on her own admission ‘delusional’ at around the occasion of charge 3, 4 and 5, I consider that it was open to the jury to accept her evidence that she was sure that the relevant events happened.[38]
[38]See [66] above.
For the foregoing reasons, the contention that the jury’s verdicts are unsafe and unsatisfactory cannot be upheld.
Leave to appeal against conviction should be refused on ground 1.
Resentence
Given that the conviction on charge 1 must be set aside, it is necessary to resentence the applicant.
Section 277(3) of the Criminal Procedure Act 2009 permits the adjustment of sentences remaining after any conviction — and consequently any sentence passed in relation to that conviction — is set aside. Importantly, s 277(3) permits the court to vary a sentence passed for an offence other than the offence for which the conviction is set aside, so long as the sentence first imposed took into account the sentence
passed in relation to the offence for which the conviction was set aside.[39]
[39]As to the exercise of the power under similar previous legislation, see R v Gibb [1997] 2 VR 576; Ryan v The Queen (1982) 149 CLR 1; R v McL [1999] 1 VR 746; McL v The Queen (2000) 203 CLR 452.
It is convenient to set out the sentences imposed by the trial judge in tabular form:
Charge Offence Sentence Cumulation 1 Indecent act with or in the presence of a child under 16 24 months 10 months 2 Indecent act with or in the presence of a child under 16 12 months 4 months 3 Rape[40] 66 months Base 4 Indecent assault 18 months 4 months 5 Indecent assault 18 months 6 months Total effective sentence: 7 years and 6 months’ imprisonment Non-parole period: 5 years Pre-sentencedetention: 32 days Other relevant orders: Forensic sample under s 464ZF of the Crimes Act 1958; life reporting pursuant to s 34 of the Sex Offenders Registration Act 2004 [40]Curiously, although the judge recognised that the applicant fell to be sentenced on charge 3 as a serious sexual offender, the applicant’s status as such is not recorded in the signed Record of Orders. See Sentencing Act 1991, s 6F(1).
I would set aside the sentence on charge 1, but would confirm all other sentences and orders for cumulation. The total effective sentence will thus be six years and eight months’ imprisonment. I would fix a new non-parole period of four years, and declare an appropriate period of pre-sentence detention. All ancillary orders should be confirmed.
NIALL JA:
I have had the advantage of reading in draft the reasons for judgment of Priest JA. I agree with him, for the reasons he gives, that leave should be given on ground 2 and the appeal allowed on that ground. Like his Honour, I would reject ground 1. The applicant should be resentenced in the way proposed by Priest JA.
CROUCHER AJA:
Introduction
I have had the advantage of reading in draft the judgment of Priest JA. I agree with the reasons his Honour gives and the orders he proposes, except that I would grant leave to appeal on ground 1 as well but ultimately would reject that ground. I wish to add only the following.
Conviction application
Ground 1: Unsafe verdicts?
I gratefully adopt Priest JA’s summary of the evidence and of the applicable law governing a ground of the type pressed here.
Initially, I was troubled about the complainant’s change of evidence as to when the events giving rise to charges 3, 4 and 5 occurred. It may be one thing to have fixed these events in time to a bout of gastro around Mothers’ Day (May) 2011 and then changed, by reference to medical records, to what turned out to have been around Fathers’ Day (September) 2009, but it struck me as potentially quite another to make that change in the face of an initial claim of remembering being aged 18, having left school, pursuing a make-up course and having started a YouTube channel at the relevant time. Instead, on the account upon which the complainant settled at trial, at the relevant time, she was aged only 16, still at school (in Year 11), not doing a make-up course at all and with no YouTube channel.
I should have thought that, ordinarily, for a young woman to be 18, finished with school, involved in a tertiary course and appearing on her own YouTube channel would be such significant events that it would be extremely unlikely that she might be mistaken in claiming that they all coincided with profoundly significant events, namely being digitally raped by her mother’s partner and the next night being indecently assaulted by him. Further, as I understand the evidence, this was the only occasion on which the complainant alleged she had been raped. In my view, that the complainant changed her account only after being told that the medical records supported the instance of gastro occurring 20 months earlier, and in such a way as to coincide with significantly different surrounding events, gave considerable cause to doubt her credibility and reliability. That cause, arguably, is reinforced when regard is had also to the other allegedly implausible features of her account to which the applicant pointed.
On reflection, however, and albeit with some hesitation, I have come to the view that, while it was well open to doubt the complainant’s ultimate account, it was also open to be satisfied beyond reasonable doubt of the essential aspects of her evidence. Significant instances of inconsistency, implausibility or the like, quite reasonably, may cause a trier of fact to doubt the account ultimately given of events in question. But it is not every case in which such doubt must exist. It all depends upon the circumstances, which are impossible to prescribe in advance. In some cases, it will not be open on the evidence rationally to exclude a doubt. In others, some might have a doubt whereas others do not, and yet each position will be open on the evidence. In my view, the latter situation describes this case.
It is within common experience to believe, with great conviction, that an event occurred at a particular time or in particular circumstances but only later to come to realise, based on new information, that the earlier belief concerning when and/or at what stage of life the event occurred was mistaken and yet maintain the conviction that the event occurred albeit at a different time and/or stage of life.
Memory is a tricky thing. It is far from perfect at times. But, giving full weight to the presumption of innocence and the burden and standard of proof in a criminal trial, as much as the recognition of the limitations of memory may give cause to doubt witnesses at times, it is a similar recognition that means that it is also within the province of a trier of fact to allow that a witness may be mistaken — and even seriously so — about matters of significant detail but still be satisfied beyond reasonable doubt that the witness is telling the truth about the essential aspects of an allegation.
It is with this type of thinking in mind that, in the end, I accepted the respondent’s submission to the effect that it is not so unusual for there to be discrepancies of the type alleged here in historical cases of sexual offending against a child. It was also significant that the complainant connected the offending to a bout of gastro, for which there were medical records in September 2009. That there was evidence of only one such episode of gastro provided added support to the ultimate claim that the complainant simply must have been mistaken earlier. Finally, while the nature of the claimed mistakes as to timing and surrounding circumstances are, as I have said, potentially very significant, it is not as if the complainant changed her account of when the events occurred from the age of 18 to, say, the age of a primary school child.
Accordingly, and for the reasons given by Priest JA, I accept that it was open on the evidence to be satisfied beyond reasonable doubt about the applicant’s guilt on charges 3, 4 and 5.
As to charge 2, while there will be situations in which an adult male washing his erect penis in the course of showering in the same bathroom as a young female do not amount to committing an indecent act in the presence of a child under 16, that was not this case. On the evidence, it was open to find that, while the complainant child was in the bathroom straightening her hair and facing a mirror that reflected into the shower, the applicant came into the bathroom, undressed, got into the shower and began washing his erect penis for quite some time. It was also open to find that the applicant intentionally performed that act so that the complainant would see him doing so in the mirror. As Priest JA has said, in those circumstances, the jury were entitled to find that, according to contemporary standards of modesty and decency, that behaviour amounted to an indecent act in the presence of a child under 16.
I otherwise respectfully adopt the reasons of Priest JA for concluding that ground 1 fails in respect of all charges.
Ground 2: Uncertainty or latent duplicity?
For the reasons given by Priest JA, I agree that ground 2 must succeed in respect of charge 1.
Conclusion and orders on the conviction application
In the result, I would grant leave to appeal on both grounds of appeal against conviction but uphold only ground 2. Otherwise, I would make the same orders as those proposed by Priest JA.
Sentence application
The proposed orders in respect of charge 1 necessitate a reconsideration of the sentences imposed on the other charges, the orders for cumulation, the resulting total effective sentence and the non-parole period.
While a consequence of the setting aside of the verdict and sentence on charge 1 is that the applicant is no longer a ‘serious sexual offender’ on charge 3 (the digital rape),[41] for the reasons given by the trial judge, I have come to the view that there should be no different sentence imposed on that offence. Also for the reasons given by his Honour, I would impose the same individual sentences on the offences in charges 2, 4 and 5. Allowing for totality, I would give the same directions for cumulation as well. Accordingly, I agree with Priest JA that the new total effective sentence should be six years and eight months’ imprisonment.
[41]See the Sentencing Act 1991 (Vic), pt 2A.
Given the applicant’s previous good character, lack of prior convictions and his ‘positive’ prospects of rehabilitation, I also agree with Priest JA that a non-parole period of four years would be appropriate.
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