Paull v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0032

STEPHEN PAULL	Applicant
v
THE KING	Respondent

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JUDGES:	McLEISH, TAYLOR and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2024
DATE OF JUDGMENT:	6 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 193
JUDGMENT APPEALED FROM:	DPP v Paull (Unreported, County Court of Victoria, 18 October 2022, Judge Rozen)

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CRIMINAL LAW – Conviction – Applicant convicted of buggery – Offending in 1978–79 – Complainant adamant that offending occurred in a weatherboard structure housing tennis equipment at particular tennis courts – Complainant gave details of how certain aspects of the weatherboard structure played a role in the offending – Complainant rejected suggestion that offending could have occurred elsewhere – Unchallenged prosecution evidence strongly suggesting that no such structure existed in 1978–79 – Whether fundamental inconsistency in prosecution case – Whether open to jury to reject evidence of the location but accept evidence of the fact of the offending beyond reasonable doubt – Whether jury verdict unreasonable or insupportable – Appeal allowed.

Criminal Procedure Act 2009, s 276(1)(a).

M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; Dansie v The Queen (2022) 274 CLR 651; Libke v The Queen (2007) 230 CLR 559, applied.

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Counsel
Applicant:		Mr T Marsh
Respondent:		Ms J Warren
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
ORR JA:

We are indebted to Taylor JA for the opportunity to read, in draft, her reasons for judgment in this matter.
The sole proposed ground of appeal against the applicant’s conviction of one charge of buggery of the complainant (‘SMA’) is that the jury’s verdict was unreasonable and/or cannot be supported by the evidence. The particulars of the proposed ground are that the evidence in the trial, taken as a whole, did not prove beyond reasonable doubt that the applicant was guilty of the charge.
We agree with Taylor JA that the ground is made out, with the result that leave to appeal should be granted and the appeal allowed. We have approached the question somewhat differently, however, as explained below.

Overview of evidence and case presented at trial

The charge of which the applicant was convicted was a course of conduct charge covering the period from 1 May 1978 (about when SMA turned 10 years old) to 31 December 1979. An overview of the evidence at trial is given in the judgment of Taylor JA. For the purposes of this appeal, the critical evidence came from three prosecution witnesses: SMA, Judy Stuchbree and Les Stuchbree. Although we will deal with aspects of their evidence in more detail later in these reasons, we commence with an overview.
SMA gave evidence that in 1978 he was living in Campbells Creek with his mother and brother. He met the applicant, who was aged in his 30s, through Scouts. SMA told the applicant that he liked playing tennis. With SMA’s mother’s permission, the applicant commenced taking SMA to play tennis at the Yapeen tennis courts. SMA said that after their tennis games, the applicant anally penetrated him on multiple occasions in a building located at the Yapeen tennis courts. He said that during the assaults the applicant gave him precise instructions about where to stand and what to do. SMA described various features of the building in which the assaults took place, which he generally referred to as a ‘shed’ or ‘the equipment shed’. It was a cream coloured weatherboard shed with a pitched roof, two doors and no windows. It was lockable, had a concrete floor and contained equipment, including tennis court nets and an urn. There was a ledge inside the building that SMA said he held on to while being penetrated by the applicant.
When shown photos of a tin shed at the Yapeen tennis courts and a brick building that had later replaced it, SMA said neither of these buildings was the building in which the offending occurred. He said that neither building was at the tennis courts at that time. When he returned to the Yapeen tennis courts in 2016, he observed a cream weatherboard shed located some 400 or 500 metres from the tennis courts. He said he was pretty sure this was the building in which the offending occurred, although it must have been modified and it was no longer in its original location at the tennis courts.
SMA said that although he couldn’t remember exactly when the sexual assaults started, he was 10 years old at the time. He did not remember the last occasion on which he was sexually assaulted by the applicant, but said that the offending went on for ‘definitely over a year’ and ‘not probably more than a year and a half’. It stopped about four weeks before he went on a trip to England to see his mother’s family. In cross-examination, he agreed that the offending had occurred in 1978 and ‘it may have been into some part of 1979’. The thrust of SMA’s evidence was that the offending began some time after his tenth birthday in May 1978 and continued for roughly a year.
Mr and Mrs Stuchbree lived in Castlemaine during the period of the alleged offending, although Mr Stuchbree had grown up in Yapeen and lived there until 1970. Both gave evidence about attending the Yapeen tennis courts in the 1970s. We will refer later to their evidence about precisely when this occurred. Mrs Stuchbree played tennis at the courts, initially as a social tennis player and later as part of the newly formed Yapeen Tennis Club. Mr Stuchbree was not a tennis player but assisted with maintenance at the courts. He was involved in the construction of the tin shed and the brick building depicted in the photographs shown to SMA. He said nothing was demolished to build the tin shed. It was built because they needed a place to store the tennis equipment that was then being stored at a building on a neighbouring property some distance from the tennis courts. The brick building was built to replace the tin shed in 1994.
Mr and Mrs Stuchbree both gave evidence about the absence of any building at the courts prior to the tin shed. Mr Stuchbree said the cream weatherboard building 400 or 500 metres from the tennis courts was a dairy.
Evidence from each of these witnesses had been led by the prosecution at a previous trial, at which the applicant was convicted of the same charge. That conviction was overturned by this Court, which ordered a retrial.[1] The Court rejected a ground of appeal that the applicant’s conviction was unreasonable and could not be supported by the evidence.[2] That ground relied on apparent inconsistencies between the evidence of SMA and the evidence of Mr and Mrs Stuchbree.[3] However, as Taylor JA notes, the evidentiary landscape across the two trials was not the same. Although the evidence of SMA was identical in both trials, the evidence of Mr and Mrs Stuchbree was not. The question whether the conviction at the present trial was unreasonable or could not be supported having regard to the evidence was therefore not answered by this Court’s conclusion on that question in relation to the first trial.
[1]Paull v The Queen [2021] VSCA 339.
[2]Ibid [36].
[3]Ibid [29].
At the present trial, the prosecutor referred in her closing address to the evidence of these three witnesses in relation to the absence or presence of a shed at the Yapeen tennis courts during the period of the alleged offending. She acknowledged that Mr and Mrs Stuchbree were adamant that there was no structure like a shed at the courts when they first went there. However, she pointed to the lack of certainty in their evidence about when that occurred. She argued that there was a gap between the period of the offending and when Mr and Mrs Stuchbree started attending the Yapeen tennis courts.
The applicant’s counsel closed to the jury on the basis that the evidence of Mr and Mrs Stuchbree established that ‘no building resembling the one that [SMA] says the offending took place in has ever been situated at the Yapeen tennis courts’.

Submissions

The applicant submits that there was a ‘fundamental conflict in the Crown case as to whether the offending as described by the complainant was possible’. He points to the ‘unwavering evidence’ of SMA that the offending occurred in a building at the Yapeen tennis courts, which contained tennis equipment and which was neither the tin shed nor the brick building Mr Stuchbree was involved in building. The applicant contrasts SMA’s evidence with the evidence of Mr and Mrs Stuchbree, which is said to establish that the tin shed was the first structure built at the Yapeen tennis courts. He emphasises that the evidence of Mr and Mrs Stuchbree was not challenged by the prosecution, as it had been in the first trial following the prosecutor’s application to cross-examine them. He says that the evidence of Mr and Mrs Stuchbree renders the alleged offences impossible.
The respondent submits that the evidence of Mr and Mrs Stuchbree was not ‘fundamentally opposed’ to SMA’s account. Unlike in the first trial, where there was far greater uncertainty in the evidence of Mr and Mrs Stuchbree, the prosecutor was not required to cross-examine Mr or Mrs Stuchbree in this trial. Their evidence concerning ‘the pre-affiliation days’ at the Yapeen tennis courts was somewhat unclear and impressionistic. It did not exclude the possibility that a building containing tennis equipment existed at the tennis courts during the period of the alleged offending, which was then demolished prior to the arrival of Mr and Mrs Stuchbree (and without them knowing anything about it).
In oral submissions, this argument was developed in more detail.
First, the respondent said that based on SMA’s evidence, the offending must have occurred between 1 May 1978 and sometime around early May 1979. That was because SMA said that the offences started when he was 10 years old and ended prior to the date on which he left for the trip to England. The respondent said that SMA recalled turning 11 in England, where he received a tennis racquet from his grandmother for his birthday.
Secondly, the respondent said that the evidence of Mr and Mrs Stuchbree about when they started attending the Yapeen tennis courts was equivocal. In evidence in chief, Mrs Stuchbree initially said that it was ‘possibly 1979’. When pressed further about the date, she could not be certain that this was the correct year. In cross-examination, she rejected a suggestion that it had been as early as 1976, but allowed for the possibility, based on the age of her son, that she could have been playing socially at Yapeen from 1978. The effect of her evidence in re‑examination was said to be that social tennis at Yapeen may not have commenced until late 1979 or early 1980, because ‘there could have been a year out’ after she finished playing at the Chewton Tennis Club in 1976 and played the 1977–78 and 1978–79 seasons with the Uniting Church in Castlemaine. This submission took a ‘year out’ to mean a year without playing tennis at all, rather than a year without playing in competitions. The evidence of Mr Stuchbree about when he started attending the Yapeen tennis courts was vague – it was that it ‘probably would have been in the 70s because that’s when the club sort of got going’.
The respondent says the evidence of Mr and Mrs Stuchbree therefore did not exclude the possibility that a building (which was neither the tin shed nor the brick building built later by persons including Mr Stuchbree) stood at the tennis courts during the period of the alleged offending, and that this structure was demolished before they arrived. The fact that Mr Stuchbree had grown up in Yapeen did not take things any further, because his evidence was that he was not a tennis player and that he had moved away from Yapeen some years prior to the alleged offending. Nor did Mr Stuchbree’s evidence that nothing was demolished to build the tin shed advance matters, because a structure could have existed in the offending period and been demolished before the Stuchbrees arrived.
The respondent further submits that even if the evidence of Mr and Mrs Stuchbree as to the existence (or non-existence) of a building at the tennis courts during the period of the alleged offending was irreconcilable with SMA’s evidence, that did not prevent the jury accepting SMA’s core account of the offending beyond reasonable doubt. Location was not an element of the offence. SMA was remembering events that occurred when he was 10 to 11 years old. The force of his belief that the offending occurred in a building that stood at the Yapeen tennis courts that was neither the tin shed nor the brick building, did not mean that the jury could not reason that he was merely wrong about that aspect of the offending.

Analysis

Section 276(1)(a) of the Criminal Procedure Act 2009 requires the Court to allow an appeal against conviction if satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. In order to succeed the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charge. The question for this Court is whether it was open to the jury, acting rationally, to be satisfied to the criminal standard that the accused was guilty.[4]
[4]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); Pell v The Queen (2020) 268 CLR 123, 146–7 [42]–[45] (‘Pell’) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); Dansie v The Queen (2022) 274 CLR 651, 657–8 [8]–[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ).
The High Court in Pell stated that this Court, ‘in a case such as’ Pell, must proceed on the assumption that the jury assessed the complainant’s evidence as credible and reliable.[5] That is because the assessment of credibility and reliability of a witness by the jury proceeds on the basis of what the jury has seen and heard in a trial, which is not to be duplicated by the appellate court.[6]
[5]Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[6]Ibid 144–5 [37].
If the jury’s verdict is to be displaced, it must therefore be by reference to something other than ‘the evaluation of the witnesses in the witness-box’.[7] In that way only, the appellate court may ultimately not accept the truth of the complainant’s evidence. That is the fundamental issue in a case such as the present, where the question is whether a verdict dependent on acceptance of a complainant’s evidence was ‘unreasonable or cannot be supported having regard to the evidence’.[8]
[7]Ibid 145 [37].
[8]Criminal Procedure Act 2009, s 276(1)(a).
As articulated in Pell, the question is whether upon an examination of the record, the jury ought, acting rationally, to have entertained a reasonable doubt as to proof of the applicant’s guilt, whether by reason of inconsistencies, discrepancies or other inadequacy in the complainant’s evidence, or in light of other evidence.[9] Put differently, the question is whether, having regard to those matters, the jury must (rather than might) have entertained a doubt as to the applicant’s guilt.[10]
[9]Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); see also M (1994) 181 CLR 487, 494–5 (Mason CJ, Deane, Dawson and Toohey JJ). See Gardner (a pseudonym) v The King [2024] VSCA 83 [85]–[89] (Emerton P, McLeish and Macaulay JJA).
[10]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J, Gleeson CJ agreeing at 562 [1], Heydon J agreeing at 597 [117]).
The appellate court is not simply giving effect to its own view in place of that of the jury, so as to substitute trial by a court of appeal for trial by jury.[11] Full allowance is given to the advantages enjoyed by the jury in having seen and heard the witnesses give evidence in the unfolding criminal trial.[12]
[11]M (1994) 181 CLR 487, 494–5 (Mason CJ, Deane, Dawson and Toohey JJ).
[12]Ibid 493, 494.
If the appellate court considers that it was not open to the jury to be satisfied of the case against the accused beyond reasonable doubt, it must set aside the verdict given by the jury based on that evidence. In that sense, the court’s doubt will, in effect, be a doubt which a reasonable jury ought to have had.[13]
[13]Ibid 494.
However, the approach described in Pell differs from asking whether the appellate court has a doubt about the conviction and then considering whether the conviction is explicable, despite that doubt, by the advantages enjoyed by the jury.[14] The latter approach risks inverting the process by conducting, in effect, a trial ‘on the papers’, and thereby blurring the functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court.[15] Instead, the appellate court starts, as explained above, on the assumption that the jury found the complainant’s evidence credible and reliable.
[14]See also ibid 501 (Brennan J), citing Chidiac v The Queen (1991) 171 CLR 432, 451–2 (Dawson J).
[15]Pell (2020) 268 CLR 123, 145 [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); M (1994) 181 CLR 487, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ).
We therefore turn to the question whether, by reason of inconsistencies, discrepancies or other inadequacy in SMA’s evidence, or in light of other evidence, the jury, acting rationally, must have entertained a reasonable doubt about accepting SMA’s evidence as to the charged events, upon which conviction depended.[16]
[16]Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
For the reasons that follow, we think that the jury ought to have entertained a reasonable doubt as to the applicant’s guilt.
The question in this case is whether ‘other evidence’ required the jury to have a doubt about the credibility and reliability of SMA as a witness. The evidence in question is that of Mr and Mrs Stuchbree, going to whether there was a building at the Yapeen tennis courts at the time of the alleged offending. Mr and Mrs Stuchbree both gave evidence that there was no building at the Yapeen tennis courts during the period that they were frequenting the site prior to the construction of the tin shed.
The existence of a building was a critical aspect of SMA’s account. His evidence was that he was buggered many times inside a building situated at the Yapeen tennis courts.[17] It was a building used for storage of equipment including tennis court nets and an urn. SMA firmly rejected the possibility that the building had been located at any distance from the courts. The building was at the courts, not somewhere nearby. In effect, the building SMA described was part of the Yapeen tennis court facilities. Together, the courts and the building on the site were used by the applicant to play tennis with SMA and then to bugger him.
[17]We use the term ‘buggered’ in light of the charge in this case. The offences of rape and carnal knowledge could not be committed against a male person at the time of the offending alleged in this case: see Crimes (Sexual Offences) Act 1980, which reformed the law of sexual offences to treat men and women in the same manner, and repealed the offence of buggery: ss 5, 6.
The building and its location were therefore a key part of SMA’s narrative of the offending. So were the presence of a shelf in the building and a concrete floor. SMA could be ‘millimetre specific’ as to where he stood in the building during the offending. He described in detail an elaborate ritual by which the applicant required him to conceal any signs of ejaculate on the concrete floor.

To our minds, it was not critical to the case against the applicant that SMA described a building with other particular features. As SMA described it, the building was a cream coloured weatherboard shed with a pitched roof, two doors and no windows. Those features were incidental to the offending alleged, as were other matters explored in the evidence such as the number and layout of the tennis courts. If the case only involved discrepancies in the evidence about those matters, the verdict of the jury would be readily sustained. For that reason, it also does not matter whether a cream coloured dairy building down the road from the tennis courts could have been moved from the courts subsequent to the offending (a matter of pure speculation). That was nothing more than a hypothesis offered by SMA to explain the absence of any building of the description that he remembered when he visited the tennis courts in 2016. The real question is whether there was any building at the Yapeen tennis courts at the times of the alleged offending. If there was not, the offending as SMA described it could not have happened.[18]
[18]For that reason, the respondent’s contention that the jury could accept SMA’s core account of the offending while also doubting that there was a building at the Yapeen tennis courts during the alleged offending cannot be accepted.
In that respect, the applicant relies on the evidence of Mr and Mrs Stuchbree as to the history of the Yapeen tennis courts and the buildings that were or were not located there. The respondent submits, among other things, that their evidence goes only to a time late in the period during which the offending is alleged to have occurred, such that it is possible that there was a building earlier in that period of which they were unaware.
One plank of the respondent’s attempt to demonstrate that the offending could have occurred entirely during the period before Mr and Mrs Stuchbree began attending the tennis courts (and observed the absence of any building) is the assertion that there was an evidentiary basis for the jury to conclude that the offending was complete by around May 1979. That date is nominated on the basis of SMA’s evidence that the offending ended before he travelled to England, and that he had arrived in England by the time of his 11^th birthday on 10 May 1979. For the purposes of this argument, it is assumed that Mr and Mrs Stuchbree began frequenting the tennis courts sometime around October 1979.
However, the evidence did not establish that SMA was in England by his eleventh birthday. There was no evidence of the date (or approximate date) on which SMA travelled to England. SMA’s mother was deceased by the time of the trial. SMA did not say that he turned 11 in England. He said that the offending ended about four weeks prior to the trip to England, and that on that trip he was given a tennis racquet by his grandmother for his 11^th birthday. In cross-examination, SMA said that he remembered being 11 when the trip to England took place. This was consistent with his evidence that the offending started when he was 10 years old and continued for over a year and for up to eighteen months. It is also consistent with his evidence that the offending commenced in 1978 and continued into some part of 1979. Although SMA referred to being given a tennis racquet by his grandmother for his birthday while in England, this does not necessarily mean that he received the gift on the day of his birthday. SMA gave evidence, to the contrary, that the offending started when he was ten years old and continued ‘definitely over a year’. It was therefore not open to the jury to reason that the offending must have taken place, if at all, in or before May 1979.
The critical issue, in any event, is whether Mr and Mrs Stuchbree were familiar with the site of the Yapeen tennis courts at or before the last occasion when the offending was said to have taken place.
To answer this question, the jury needed, as do we, to grapple with the evidence given by Mr and Mrs Stuchbree concerning what they knew about the existence or otherwise of a building at the Yapeen tennis courts during the period of the alleged offending.
Mr Stuchbree was born in Yapeen. Prior to getting married in 1970, he lived two kilometres from the tennis courts. After getting married, he and Mrs Stuchbree moved to Castlemaine. When asked about ‘the very first time [he] actually attended at the tennis courts’, Mr Stuchbree said that it was probably in the 1970s, when the club ‘got going’. This was a reference to ‘affiliation’ as an official club playing competitions. Mr Stuchbree said there had been earlier clubs at the Yapeen tennis courts, but they were ‘demolished’ after the older people died out. He said he had not been involved with those earlier clubs.
Mr Stuchbree said that he supported his wife’s involvement with the club. He helped out with maintenance and helped build the tin shed at the courts. It was a wooden frame covered with corrugated iron, and had a dirt floor. He had no memory of when the shed was completed, but it was built in a matter of a few weeks, or months.
Mr Stuchbree agreed in cross-examination that the entire reason why the shed was built was that the club had nowhere to store the tennis nets. Nothing had been demolished in order to build the shed. He had never seen a structure resembling that which SMA described at the Yapeen tennis courts. Mr Stuchbree was not asked whether he had seen any other structure at the courts before he started frequenting the courts after the club ‘got going’.
In re-examination, Mr Stuchbree was asked if he had ‘any rough idea’ about when he first attended the Yapeen tennis courts. He said it would have been in the 1970s, when his wife became involved in the tennis club. It is plain enough that his attendance at the courts did not pre-date that of his wife, and that it commenced around the time when the club was ‘affiliated’.
Mrs Stuchbree said she first had dealings with the Yapeen Tennis Club in the late 1970s but was aware of it before then, including because Mr Stuchbree’s uncle won a trophy, or trophies, with the club many years before. She said that she ‘possibly’ first attended the Yapeen tennis courts in 1979, playing socially before the newly formed club joined the Lawn Tennis Association in about October 1979. That date is consistent with the reference in the minutes of the annual general meeting of the club, held on 11 August 1981, to the minutes of a previous annual general meeting. That earlier meeting would have been held in about August 1980 after the 1979–80 year. The competitive tennis season started in October and went until the end of March or the beginning of April. Mrs Stuchbree said that when the club started, there were no structures or buildings at the site. She said that was why the tin shed was built. She agreed that there were ‘no facilities’ at the courts when the tennis club came into existence in 1979.
Mrs Stuchbree agreed in cross-examination that the period over which she played social tennis before the club ‘got off the ground’ could have been from 1978 onwards. This was based on the age of her son at the time. She agreed that it followed that the period of social tennis could have been a year or 18 months. In re-examination, Mrs Stuchbree said she could not recall, when asked to do so ‘with any clarity’, the month or year when the club became affiliated. Her evidence was that she finished playing at Chewton in 1976 and played two seasons with the Uniting Church in Castlemaine, although ‘there could have been a year out’. As noted earlier, the respondent relied on this evidence as purportedly showing that Mrs Stuchbree did not commence playing at Yapeen until the season commencing in late 1979.
Although she was not certain of the dates, Mrs Stuchbree’s recollection of a period of ‘social’ tennis that preceded affiliation in about October 1979 is significant. As mentioned, in cross-examination she agreed that this period could have been a year or 18 months. She explained that they had to form a committee and see what level of interest and commitment there was. The courts had been neglected for some time, and they went there ‘most weekends’ during the warmer months, doing maintenance that always needed to be done, and combining the work with tennis. There was ‘a lot [of] work’. In addition, they had to make submissions for a grant from the local council. This evidence is consistent with, and underpins, Mrs Stuchbree’s acceptance that she started playing at the courts about a year before October 1979, if not earlier. At the very least, the period of social tennis must have gone back to the ‘warmer’ months earlier in 1979.
Evidence Mrs Stuchbree gave in re-examination bears this out. As mentioned, she said that the tennis season started in October each year and went until late March or early April. She finished playing for Chewton at the end of March or the start of April in 1976. It was after that time that she played for two seasons with the Uniting Church, although she was not sure which year she started playing with the Uniting Church. At some point there ‘could have been a year out’. In the context of giving evidence about tennis seasons and the clubs she had played for, this suggests that there could have been a year when Mrs Stuchbree was not playing competitive tennis. If so, that would be consistent with her commencing with the Yapeen club in the 1979–80 season, ie from October 1979, having finished with the Uniting Church in March/April of either 1978 or 1979. Moreover, her evidence of the period of ‘social tennis’ at Yapeen lasting for a year or 18 months would be consistent with a ‘year out’ from competitive tennis after the season that ended in March/April 1978.
Despite her lack of specific recall about dates, it is clear from Mrs Stuchbree’s unchallenged evidence set out above that the Yapeen tennis club was affiliated in time for the 1979–80 season, around October 1979. It is also clear that Mrs Stuchbree played tennis at Yapeen socially before then, during the period when preparatory work on the courts and the administrative tasks necessary for affiliation were being undertaken. Without being sure of dates, Mrs Stuchbree put the period of social tennis as extending back at least a year, into 1978. That would take her familiarity with the courts back to at least October 1978.
Subject to Mr and Mrs Stuchbree’s acceptance that they could not be sure about dates, their otherwise unchallenged evidence therefore denies that there was a building on the Yapeen tennis courts site for a significant part of the period of over a year starting after SMA turned 10 in May 1978, when SMA says he was offended against.

The Stuchbrees’ lack of certainty about dates is not significant, in circumstances where the narrative account given by Mrs Stuchbree as to the period before affiliation supports her acceptance that the period of social tennis extended back to 1978. Moreover, the jury was bound to take account of the forensic disadvantage to the applicant resulting from the long time that had passed since the alleged offending.[19] It would be wrong, in these circumstances, to decide that the unchallenged evidence of Mr and Mrs Stuchbree did not give rise to a reasonable doubt as to the applicant’s guilt because they did not recall specific dates.[20] At the very least, the unchallenged evidence suggests real doubt as to whether there was a building at the Yapeen tennis courts in October 1978, and this in turn gives rise to a reasonable doubt as to the applicant’s guilt of the offence charged.
[19]Jury Directions Act 2015, ss 38–9.
[20]Ibid s 4A(1)(b), (2). See also Pell v The Queen [2019] VSCA 186, [1006]–[1007], [1010] (Weinberg JA); Pell (2020) 268 CLR 123, 158 [91] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
In that state of the evidence, the jury ought to have entertained a reasonable doubt about the applicant’s guilt. That suffices to decide the appeal. For completeness, however, even if Mrs Stuchbree started playing social tennis only in the ‘warmer’ months of early 1979, and not for the 12 or 18 months before October 1979 she estimated, we would reach the same result. On that view of the evidence, the period of social tennis would still run into, or intersect with, the earliest time when, on SMA’s evidence, the offending ceased (after he turned 11 in May 1979).
Further, even if there was a very brief period between the end of the offending and Mrs Stuchbree beginning to play social tennis, the building in which the offending is said to have occurred would need to have vanished virtually overnight. On the evidence, if there was a building as SMA asserted, it had gone by the time that Mr and Mrs Stuchbree began attending the courts. On SMA’s account, it must have been demolished or moved immediately before that time. Even accepting that Mr and Mrs Stuchbree did not live at Yapeen and had no familiarity with the courts before they started attending them, it would be surprising if neither of them heard about the recent demolition of a building at the site when the new club was being set up. It is also unlikely that a building with a concrete floor was removed at a time when there was no formal tennis club and ultimately replaced with a new building with a dirt floor. In the interim, players would have needed to resort to alternative, unsecured storage for the tennis equipment that the older building would have held, at a more remote location. The prospect of a prior building having been removed in those circumstances, unknown to Mr and Mrs Stuchbree, is remote at best.
The jury should therefore have had a reasonable doubt about the applicant’s guilt, even if they took the view that Mr and Mrs Stuchbree only negated the existence of a building on the Yapeen tennis courts site after a point earlier in 1979.

Conclusion

We would grant leave to appeal and allow the appeal. The conviction should be quashed and a verdict of acquittal entered in its place.

TAYLOR JA:

Introduction and overview

On 18 October 2022 the applicant was convicted by a jury in the County Court of one charge of buggery.[21]
[21]Contrary to s 68(1) of the Crimes Act1958, as in operation between 1 April 1959 and 28 February 1981.

The offending, alleged as a course of conduct, was said to have taken place between 1 May 1978 and 31 December 1979 in the clubrooms[22] at the Yapeen tennis courts. The complainant, SMA, was then 10 to 11 years of age. The applicant, now aged 78 years, was then aged 32 to 34 years.
[22]SMA variously referred to the building as the ‘clubrooms’, ‘store room’, ‘equipment room’ or ‘shed’.
Beyond his denial of the alleged offending, it was the applicant’s case that the offending could not have occurred because the evidence of SMA did not admit of the possibility that the offending happened anywhere other than in the clubrooms at the Yapeen tennis courts and other unchallenged evidence established that the clubrooms did not exist at the relevant time.
The applicant seeks leave to appeal against conviction on a single ground:
The verdict of the jury on charge one is unreasonable and/or cannot be supported by the evidence.
Particulars: The evidence in the trial, taken as a whole, did not prove beyond reasonable doubt that the applicant was guilty of the charge.
For the reasons that follow I would grant leave to appeal, allow the appeal, set aside the conviction and enter a verdict of not guilty.

Previous trial

The applicant was previously convicted of the same charge. That conviction was overturned by this Court.[23]
[23]Paull v The Queen [2021] VSCA 339 (Priest, Kaye and Niall JJA) (‘Paull’).
In ordering a new trial, the Court in Paull rejected a ground of appeal that the conviction was unreasonable or could not be supported having regard to the evidence. The Court considered it well-open to the jury to be satisfied beyond reasonable doubt by SMA’s evidence that the applicant had, on occasions after tennis, anally penetrated him, while also considering that he was mistaken about the structure in which the offending took place or that the evidence of Judy and Leslie Stuchbree — a married couple associated with the Yapeen tennis club — concerning the (non)existence of a building on the site of the Yapeen tennis courts was unreliable.[24]
[24]Paull, [35].
The witnesses called and exhibits tendered in the retrial were identical with those called and tendered in the first trial. The evidentiary landscape, however, was not the same. Unlike in the first trial, the prosecution did not, pursuant to s 38 of the Evidence Act 2008, challenge the parts of the evidence of Judith and Leslie Stuchbree that were incompatible with the evidence of SMA.

The trial

So as to understand the arguments it is necessary to summarise the evidence, particularly as it relates to the location of the offending.

SMA

SMA took part in a VARE[25] interview on 4 October 2016. He said that in 1978 he lived with his mother and brother in Campbells Creek, a town near Castlemaine. He met the applicant through the Scouts and told him that he liked playing tennis. SMA’s mother gave him permission to play tennis with the applicant.
[25]Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367 and Criminal Procedure Regulations 2009, Part 2.
SMA said that they nearly always used to go to the Yapeen tennis courts in the applicant’s ute despite there being courts in Campbells Creek. On occasion they went to Guildford if the Yapeen courts were in use. SMA described the ‘back’ route driven by the applicant to get there. He said that it was an isolated place and, as they played tennis, the applicant would always face north on the court, refusing to swap ends. From there the applicant would look at a house on the corner which, on reflection, SMA knew to be the applicant looking to see if anyone was around. SMA said that sometimes the nets were up at the courts and other times they had a ‘careful way’ to consider when the ball was over. SMA also said that from time to time they would collect the nets from the equipment shed at the courts.
SMA gave evidence of an uncharged act in which the applicant masturbated in front of him as the first occasion anything occurred in the clubroom. SMA then said:
The second time it happened we played the game of tennis and the same thing, went into the storeroom or equipment room, whatever it was called, and he told me – asked me, whatever, to stand in the same – the same spot. And I had to – I ended up in this kind of ritual of I would take my shoes off but was to – because I had the ledge in front me [sic] I would hold on to the ledge while I took my shoes off and I was to stand on top of my shoes. I was to have my feet a certain distance apart, when I was standing on my shoes he would – he would show me where he wanted me to actually be standing. And then I would take off my pants, my – and I was to do that without my pants touching the floor, it was dusty concrete, and not to – not to leave a mark to make one of those – make my pants dirty. And he would take them and fold them up and put them aside. And God knows what he was up to behind me, but basically – well, he – I don’t know how else to say it – he would – he would – he would penetrate me with his penis anally. And I remember the first two times, you know, I – I cried a fair bit but I was quiet, I didn’t say anything. And I remember asking him, you know, ‘why?’ And he would say that this – this is – he said that this is – this is what men did, which is pretty fucked.
SMA said that the applicant had the keys to the clubroom, which he unlocked and locked. He ‘guessed’ that the applicant was a member of the club. SMA said that the clubroom contained ‘lots of equipment’ and had an ‘other side’ where the urn was kept. He said that the assault was always exactly the same and he could be ‘millimetre specific’ as to where he stood and held the shelf. He could also tell if the equipment had been moved. SMA said he saw the applicant’s ejaculate arrive on the floor beside him. SMA was made to clean his anus with folded toilet paper he assumed had been in the applicant’s back pocket and to collect dust, soil or ochre from outside to cover the disturbance to the dust on the concrete floor from where the ejaculate had been wiped away.

SMA said that the anal penetration happened seven to eight times at an ‘absolute bare minimum’ over an 18 month period — ‘he must have had access to me for a year and a half’. It occurred in different seasons. It occurred on the weekend and ‘maybe’ during the week during school holidays. He said that it stopped when he went with his mother to England for a three month visit. He said that whilst in England his grandmother gave him a tennis racquet as a birthday present.
SMA described the equipment shed as being at the tennis courts and having cream coloured timber slats running lengthways and a concrete floor. Its door faced north. The two tennis courts also ran north-south. He could not recall the roof material, although later adopted the questioner’s statement that it was tin. It had no windows. SMA said that the (internal) wall of the shed was ‘tin against concrete’ and while he was being buggered he looked down and could see the light underneath the ‘outside of the tin’.
SMA said that since the investigation started in 2016 he went back to the Yapeen tennis courts, which now had three courts running east-west and a different building with a plaque above the door indicating its date of construction. He took a photograph, tendered in evidence, showing a plaque affixed to a brick wall indicating that the building was opened in 1994. Two other photographs show that brick structure in situ. SMA surmised that when the new equipment shed was put in, the courts were refurbished, reoriented and a third court added. SMA also located and photographed a cream coloured weatherboard building with a tin roof some distance from the tennis courts. The photographs, again tendered in evidence, show the building having at least three windows and being next to a red brick building. One photograph depicts a single door but not of sufficient clarity to identify any locking mechanism. Of that building SMA said that it was the building in which the offending occurred but that it had been moved and ‘modified’ by having windows cut in and one of the doors removed.
In cross-examination SMA said that the cream coloured weatherboard shed had been moved 400 to 500 metres from the courts. He said that he was not 100 percent sure it was the same shed in which the offending had occurred but it had the same weatherboards and roof pitch. SMA hypothesised that the same builder might have built more than one shed. Of the brick structure now standing at the Yapeen tennis courts and an earlier tin structure built on the same site (two photographs of which were also tendered in evidence) SMA said that he was 100 percent sure that neither was present at the courts at the time the offending occurred.
SMA said that the equipment shed was locked and that the applicant had the keys. When travelling to the courts the applicant did not stop en route to collect keys. Inside the shed he saw the shapes of equipment including poles with winding handles. He did not know if it had electric lighting, but it had a big urn so he assumed there was power.
SMA gave the following answers when cross-examined about the connection between the building and the offending.
COUNSEL: … that’s the building that you believe the alleged offending occurred in. Is that correct? --- That’s correct.
Now, I want to suggest to you something and give you the opportunity to comment on that. I suggest to you that that building, the cream weatherboard building with the A-frame shaped roof, never stood at the [Yapeen[26]] tennis courts. What do you say to that? --- It did stand at the [Yapeen] tennis courts.
I further suggest to you that no building that even resembles that ever stood at the [Yapeen] tennis courts. What do you say to that? --- That’s incorrect.
I suggest to you that in 1978, 1979, at that time, there were in fact no buildings standing at the [Yapeen] tennis courts other than a toilet building. What do you say to that? --- That is incorrect.
You say, do you not, that your memory of these offences, one of the critical aspects of your memory of these offences occurring is your memory of the building. Is that fair? ---- My memory of being raped in the building? Is that your question?
[26]The transcript uses the word Nepean, but it was accepted that that was a transcription error.
At that point the intermediary[27] intervened to request that the question be framed ‘more directly and clearly’. The cross-examination continued.
COUNSEL: [SMA], do you have a clear memory of the alleged offending? --- Clear enough. Very – except – could not be clearer. It’s not possible to be clearer; that that building existed and that I was raped inside it many times.
Your memory is – and you tell me if I’m wrong about this, but that that building was directly adjacent – effectively at the site of the [Yapeen] tennis courts.
HIS HONOUR: When you say ‘that building’, the building which you say that these offences occurred in.
COUNSEL: Yes, yes. (To witness) Yes, sorry. I’ll just make that clear. The building that you say these offences occurred in, your memory is that that building stood at the [Yapeen] tennis courts? --- That is correct. That is where the building was that the offences committed were committed at, yeah.
[27]The Court in Paull made observations about the use of the special hearing procedures. See Paull, [17].
When the applicant’s memory of the inside of the building was further tested, he said it contained nets, which were easy to see because of the white strips. He said he remembered that everything was dusty. He was not allowed to walk into the left side, where the large stainless steel urn was, so as to avoid dust tracks. He said he remembered the shelf. SMA said that the internal walls were unpainted weatherboard and the floor was concrete. He again said that the building in the photograph might not be the ‘absolute correct building’ because there might have been a builder in the area that built another one.
When shown the photographs of the tin structure and later brick structure located at the tennis courts, SMA said that neither of those buildings were the place where the offence happened.
SMA maintained his evidence that in 1978 and 1979 there were two, not three, tennis courts and they were oriented north-south.

Judith Stuchbree

Judith Stuchbree gave evidence that in the 1970s she lived in Castlemaine with her husband Leslie Stuchbree. She played competition tennis for Chewton, including in the 1975 grand final some five months after giving birth to her son. The Chewton club disbanded in 1976. Mrs Stuchbree said that she began to have dealings with the Yapeen Tennis Club in ‘the late 1970s’, although knew of the club because her husband was from Yapeen and his uncle had won many trophies.
When asked to recall the first time she attended the Yapeen tennis courts, Mrs Stuchbree said ‘possibly 1979’. She said that initially there was no formal club. Rather, it was a social gathering of local people. There was no equipment at the courts. One of the men would go to Tyzack’s Store and collect the nets. Everyone would bring their own eskies, thermoses and chairs. The ladies made the afternoon tea at home. There were three courts made of asphalt, but only two were playable. The third had bushes on the surface of the court. The courts ran east-west. That orientation never changed.
Mrs Stuchbree said that Yapeen Tennis Club was formed and it joined the Castlemaine District Lawn Tennis Association in ‘approximately October 1979’. She said that prior to the formation of the club there were no structures or buildings in the vicinity of the courts. That was why a shed was built. Mrs Stuchbree produced the minutes of the annual general meeting of the Yapeen Tennis Club held on 11 August 1981 which contain a note of thanks to those who attended working bees to construct the new shed. She said that the shed was built by ‘the husbands’ in 79/80, but had no specific recall of when work was commenced or completed. It was made of timber and corrugated iron.
In cross-examination Mrs Stuchbree said that the Yapeen tennis courts were underutilised and poorly cared for throughout most of the 1970s. In 1979 the courts had no permanent structures or facilities. When the tin shed was built it had no power, nor did the later brick structure. There was no urn for making tea and coffee. She said that she played socially at the Yapeen courts before the Club formally got off the ground. That was when her son was aged 3 or 4, so it would have been from 1978 onwards. She was there most weekends because there was maintenance to be done and a group of people would bring tennis racquets to play as well. Once the Club had started, matches were at the Yapeen courts every fortnight. Mrs Stuchbree said that prior to the building of the tin shed, the nets, equipment and cups and saucers were stored at a place known as the Tyzack’s general store. It was walking distance from the courts. She could not recall the nets ever being left up or seeing the nets left up.
Mrs Stuchbree said that when the tin shed was built it was locked with a padlock. Members of the committee had keys. She was the treasurer. There was no reason for non-members to have a key. The applicant had never been a member of the Club.
When shown the photographs of the cream coloured weatherboard building taken by SMA in 2016, Mrs Stuchbree was asked if that building had ever stood at or close to the Yapeen tennis courts. She replied ‘I don’t even know this building’. Mrs Stuchbree was then shown a photograph of the brick building built at the courts in 1994 and the plaque which contained her husband’s name. She said that the tin shed was demolished to make way for that building.
In re-examination Mrs Stuchbree said that she could not recall clearly what year the Yapeen Tennis Club became affiliated with the association. She said that after she played for Chewton she then played with the Uniting Church for two years but could not be certain if there was a gap — ‘a year out’ — between the two.

Leslie Stuchbree

Leslie Stuchbree gave evidence that he was not a tennis player but helped out with maintenance at Yapeen once the Club had become affiliated. In cross-examination he said he was instrumental in building the ‘first permanent structure’ for the Club. It was a wooden frame with corrugated iron on it. It had a dirt floor and not a concrete slab. No other structure was demolished to allow it to be built. Prior to its construction the nets and equipment were stored at Tyzack’s store, being the old general store at Yapeen. The general store was part of a house. Once or twice he collected the nets. The door was not locked. Mr Stuchbree said that you always yelled out to let them know you were there. He said that the nets were always taken down because they were too dear to replace.
When shown the photographs of the cream coloured weatherboard building, Mr Stuchbree said that it was ‘roughly 150 metres or more up the Vaughan Road past Tyzacks’s store’ and was a dairy. He identified the depicted adjacent brick building as a cow shed. He noted that the photographs showed the dairy connected to power. Mr Stuchbree said that the tin shed he built at the courts did not have power and nor does its brick replacement. He said that as a Yapeen boy, born and bred, he had never seen a structure resembling the cream coloured weatherboard building at the Yapeen tennis courts.

Patrick Kavanagh

Patrick Kavanagh is a medical practitioner and psychotherapist. He gave evidence that SMA had been his patient since 1994 and that, in June 2014, SMA told him that he had been anally penetrated on more than one occasion by his mother’s boyfriend,[28] who was also his scout master. Dr Kavanagh said that he assisted SMA to make a complaint to the Royal Commission [into Institutional Responses to Child Sexual Abuse].[29]

Informant

[28]In the VARE SMA said that the applicant was in a relationship with his mother. In the record of interview, the applicant denied any relationship but admitted that he had had sex with the applicant’s mother on a single occasion.

[29]During the special hearing SMA said he told Dr Kavanagh about the offending in 2014 after listening to information about the royal commission on the radio and feeling that there was ‘a place in society’ for such discussions.

Detective Senior Constable Jaime Coles stated that although she was the informant she did not always have carriage of the investigation. Initially it was undertaken by detectives from a task force associated with the royal commission and then by Detective Sergeant Dale Hallinan. In cross-examination DSC Coles said that her enquiries confirmed that SMA’s mother was deceased at the time the investigation commenced. She said that SMA visited the Yapeen tennis courts in 2016 and showed her photographs of a weatherboard building he said had been moved from the tennis courts to another property. DSC Coles said the she had not spoken to the owners of that property about that building. She said that DS Hallinan made enquiries in relation to the Tyzack store and it was operating in the 1980s. DSC Coles did not know if the Tyzack family still lived there. She said that she did not know who lived in the house near the courts that SMA said the applicant would look towards as they played tennis.

Record of interview

The applicant gave a record of interview on 5 December 2016. He said that he knew SMA in the Scouts and occasionally took him and another boy home from Scouts. He said that he never took SMA on any other excursions or outings outside of his involvement in the Scouts. The applicant said he did not play tennis and had never been to the courts at Yapeen. He was shown the photograph of the cream coloured weatherboard shed and told that it was ‘a relocated shed’ that was ‘originally’ at the courts. The applicant said that he did not recognise it. The applicant denied the offending.

Closing addresses

In her closing address to the jury the prosecutor addressed the link between the location of the weatherboard shed at the tennis courts and the fact of the offending. She variously said:
·    [SMA] recalled very specific details, very specific details, and some of those details are important in setting the scene, or setting the location and almost stage [sic] that the prosecution says that the offending occurred in.
·    There’s a lot of evidence. Some of it is more important than others. The main issue is for you, ladies and gentleman, are you satisfied beyond reasonable doubt that [the applicant] placed his penis into the anus of [SMA] on more than one occasion, in the same sort of ritual, tennis followed by the crime of buggery?
·    Some of the details I’m sure will be puzzling you … . One of them is the nets, and all this evidence about the shed. It’s the elephant in the room in this case, and I’ll be quite candid about that. The prosecution does not have to prove everything beyond reasonable doubt, only the elements of the offence of buggery and course of conduct, but what it does – may cause you some trouble are some of the details.
·    What does [SMA] say about the shed? He says initially that that’s what he thought the shed was, but the windows weren’t in it. He thought they’d been cut in there, and then he says it must have been moved because his memory is not of that – a building with those cream weatherboards and a pitched roof being in that location. His memory is different. We don’t have a video or photos or anything to establish if that shed was there, if it had always been in the place that it is now, or if it was somewhere else, or remember what [SMA] says? ‘Well, if there was a builder in the area, could have built a similar shed’. A builder in the area, making sheds, building, could have – he calls it the house at that stage, then that could explain it. Now, I’m not sure what my learned friend’s going to say, but I anticipate he may say, ‘well, the complainant [SMA] connects the offending so closely to that, a tennis shed at the courts, then if you think it can’t be there or you accept that there wasn’t a shed there then you’ll have to disregard his evidence and the Crown can’t prove its case’.
Is that really the case? What is this case about? This case is about whether the accused man anally penetrated 10-year-old [SMA]. Yes, the surrounding details may guide you or help you, but memories can be wrong. Memories of things like that can be wrong. [SMA] was very adamant initially that that was the shed but the [sic] conceded, ‘well, maybe they’ve moved’. That was his memory. His memory may not be correct on that, but what is the most important thing that might have stood out as an adult was the anal penetration. Yes, there were lots of details, but it’s the anal penetration that he is 100 per cent sure. And you might think that is something that would never alter throughout your whole life, a memory of the pain, the blood and the anal penetration.
·    The central issue is the credibility and reliability of [SMA], but the central issue that you have to answer is did [the applicant] anally penetrate him on the number of – on many occasions after tennis? Because he may not be correct, and it would have been a lot easier if he were just going to sit there and lie, just say, ‘Look, some sort of building, I don’t know’, but he’s trying to – he’s being truthful. He’s telling you what his memory is. His memory may be wrong …
·    Has [SMA] got it wrong? Was there a shed there in 1978? Was there a shed somewhere else or does it really not matter where it occurred but the fact of it occurring is the important thing?
In his closing address, defence counsel said that the details of the offending relied upon by the prosecution were ‘inextricably linked’ to the Yapeen tennis courts as they were in 1978 and 1979. His central argument was encapsulated by the submission:
… if you have a reasonable doubt about the existence of the buildings at the Yapeen tennis courts then you must have a reasonable doubt about the evidence that’s given by [SMA] more generally and indeed about the allegations themselves.

Charge

Prior to the judge charging the jury, defence counsel sought a Browne v Dunn[30] direction in light of the prosecution argument that SMA may have been mistaken about the location of the shed in which the offending occurred. It was argued that an unfairness arose because SMA’s evidence about the existence and location of the weatherboard building was contradicted by other prosecution witnesses and the Crown had failed to put to him that he might have been mistaken.
[30]Browne v Dunn (1893) 6 R 67, 70–71.
The prosecutor said that she was not prepared to withdraw the argument but agreed that ‘there may be a danger there’. The prosecutor suggested that the judge draw the jury’s attention to the fact that the proposition that SMA was mistaken was not directly to put to him during the summary of counsel’s arguments.
In summarising the prosecutor’s arguments to the jury the judge said:
[The prosecutor] submitted to you that [SMA’s] memory may not be correct when he told you the shed was at the Yapeen courts. Now, I need to say something to you about that submission and it is important that you listen carefully to this. [SMA] was never asked directly when he gave evidence or it was never suggested to him when he gave evidence that he may be mistaken about the location of a building in which he says he was assaulted. Now, that means of course that you do not know what he would have said if he was challenged in this way in giving this evidence. I need to direct you that you can take that into account in considering the weight that you give to [the prosecutor’s] submission about [SMA’s] evidence.

Applicant’s submissions

Globally the applicant submitted that there was a fundamental conflict within the prosecution case as to whether the offending described by SMA was possible. SMA gave unwavering evidence that the offending occurred in a specific building at the Yapeen tennis courts to which the applicant had a key and which contained tennis equipment. His allegations were intrinsically linked with the time and place they occurred. Judith and Leslie Stuchbree, both unknown to both the applicant and SMA, gave evidence that prior to the building of the tin shed there were no structures at the Yapeen tennis courts. Nets and equipment were obtained from an unlocked building on a nearby property.

The applicant developed a number of overlapping arguments to support this global submission:
•First, SMA’s account as to the location and time at which the offending occurred was irreconcilable with the unchallenged evidence of the Stuchbrees. Unlike the first trial, the prosecutor made no application to cross-examine Judith and Leslie Stuchbree pursuant to s 38 of the Evidence Act. Their evidence — including that there was no structure at the Yapeen courts until 1979 at the earliest — was entirely unchallenged. There was no basis to impugn their evidence as unreliable.
•Secondly, it is immaterial that the location of the offending was not an element of the offence charged. The evidence of SMA made location intrinsic to proof of it. He ‘nailed his colours to the mast’ of the weatherboard structure at the courts and his evidence was such that the details of that location could not be filleted away from his account of being buggered by the applicant.
•Thirdly, the building photographed by SMA in 2016 could not have been the building in which the offending took place.
•Fourthly, the ‘100 percent’ certainty of SMA’s evidence that the weatherboard structure was at the tennis courts and was the building in which he was offended against coupled with the failure of the prosecution to put to SMA that he may have been mistaken about those matters ‘closed the gate’ on the prosecution being able to suggest that SMA was mistaken as to the location at which the offending occurred.
•Fifthly, even if the jury concluded that the Stuchbrees were mistaken about the time at which the tin shed at the Yapeen tennis courts was first constructed, SMA’s account of the location at which the offending occurred was still irreconcilable with the objective evidence. No edifice was demolished before the tin shed was constructed. SMA was adamant that the offending did not occur in the tin shed (or later brick construction).
•Sixthly, it is implausible that the applicant had keys to access a building at the Yapeen tennis courts when he was not a member of the club.
•Seventhly, any significant forensic disadvantage impacting the quality of the evidence must be resolved in favour of the applicant. In particular, the features of the location of the offending was the only way in which SMA’s narrative could be tested. Further, it was mere speculation that a weatherboard structure was erected and demolished or moved from the Yapeen courts prior to the involvement of the Stuchbrees in the formation of the tennis club.

Respondent’s submissions

The respondent’s main argument was that the evidence of the Stuchbrees was not irreconcilable with that of SMA. There was no ‘solid obstacle’ in the pathway to conviction. The following matters were pressed:
•SMA was sure that the offending occurred in a building similar to that he photographed in 2016 some 400 to 500 metres from the tennis courts, that is walking distance.
•The Stuchbrees’ evidence that equipment was stored at Tyzack’s store prior to the construction of the tin shed was temporally limited to the time from which Mrs Stuchbree began playing tennis in Yapeen. The Stuchbrees’ evidence that the courts were publicly open to all-comers prior to the formation of the Yapeen Tennis Club made it possible that equipment was stored in the weatherboard structure for some years.
•The timeline of the involvement of the Stuchbrees at the Yapeen courts did not eliminate the possibility that a structure was constructed and demolished prior to the erection of the tin shed. The evidence of Leslie Stuchbree that there was no weatherboard structure that ever stood at the courts was limited by the fact that he was not a tennis player and had moved from Yapeen to Castlemaine in about 1970.
•Notwithstanding the between dates charge on the indictment, the timeline of offending derived from SMA’s evidence that the offending commenced when he was about 10 years old and concluded a few weeks before he travelled to England — where he received a tennis racquet for his birthday — meant that it occurred between 10 May 1978 and 10 May 1979. The evidence of Judith Stuchbree made it possible that she did not commence playing at the Yapeen courts until late 1979.
•That it was possible that there was no overlap between the period of offending and the involvement of the Stuchbrees at the Yapeen courts meant that it was not incumbent upon the prosecutor to seek to cross-examine them under s 38 of the Evidence Act nor put to SMA that he was mistaken about the location.
The respondent further submitted that even if the location evidence was irreconcilable as between SMA and the Stuchbrees, that did not prevent the jury accepting his core account of the offending beyond reasonable doubt. Location was not an element of the offence. SMA was remembering events that occurred when he was ten years old. The force of his ‘100 percent’ belief as to the location of the offending did not mean that the jury could not reason he was wrong about that aspect of it.

Analysis

The applicant’s proposed ground is founded in s 276(1)(a) of the Criminal Procedure Act 2009 which requires this Court to allow an appeal against conviction if satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. In order to succeed the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charge. The question for this Court is whether it was open to the jury, acting rationally, to be satisfied to the criminal standard that the accused was guilty.[31] To determine that question the Court is required to undertake an independent assessment of the whole of the evidence.[32] In so doing the Court is required to assume that the complainant’s evidence was assessed by the jury to be credible and reliable but nonetheless examine the record to see whether ‘either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence’[33] the jury ought to have entertained a reasonable doubt as to proof of guilt. The Court is also required to give full weight to the jury’s advantage in listening to and observing the witnesses.[34]
[31]M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123, 146–7 [42]–[45] (‘Pell’); Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651, 657–8 [8]–[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ) (‘Dansie’).
[32]Pell, [39]; Dansie, [12].
[33]Pell, [39].
[34]M, 493.
Having undertaken an independent assessment of the whole of the evidence, I am persuaded that the evident inconsistencies, discrepancies and other inadequacies in it means that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.
While not a matter that the prosecution was required to prove beyond reasonable doubt, the location of the offending — both the structure in which it occurred and the site of that structure — was central to SMA’s account of it. His evidence was extraordinarily specific: ‘[i]t’s not possible to be clearer; that that building existed and that I was raped inside it many times’. Further, that building stood at and not near to the Yapeen tennis courts. The building was a lockable cream coloured weatherboard shed with a pitched roof and concrete floor. The floor was dusty. It had no windows. It had two doors. One faced north. It had a shelf. It contained tennis equipment — nets and poles with winding handles — as well as an urn. It stood at the Yapeen tennis courts. SMA could be millimetre specific as to where he stood and held the shelf, as well as what he could see in the available light during the offending. He emphasised the isolation of the location. He did not say that it was adjacent to a brick building. He rejected that he could have been offended against in a different building or in the building he described sited at a different location.
The prosecutor argued to the jury that the reconciliation of the location evidence was ‘the elephant in the room’. The argument pressed in this Court that it was possible that there was no temporal overlap between the period of the offending — which occurred between the 10^th and 11^th birthdays of SMA, that is May 1978 to May 1979 — and the involvement of the Stuchbrees at the Yapeen tennis courts — which possibly did not commence until late 1979 — was not urged as forcefully to the jury.
In any event, one particular example of the acute forensic disadvantage in this case is that the dates of the trip to England in 1979 were never given or approximated. SMA’s mother was deceased. In the VARE SMA did not state that he had his 11^th birthday in England. He said that the offending ended about four weeks prior to the trip to England. He said:
… I remember I had a really ordinary tennis racquet. And I remember my grandmother when I was over in England I got another – I could have anything I want – for one present for my birthday and I got a tennis racquet. And I remember thinking, you know, ‘who the hell am I gunna play tennis with?’ but I got a tennis racquet anyway.’
SMA was asked in cross-examination when he recalled the trip to England taking place. He said ‘I remember being 11’. He agreed that he was 11 in 1979.
The combination of this evidence makes it less than clear whether SMA departed for England with his mother and brother before his 11^th birthday in May 1979 or sometime after he had turned 11 (at which stage he received an ‘anything you want for your birthday’ present from his grandmother).
Further, even if SMA left for England in the first half of 1979 and Mr and Mrs Stuchbree did not start attending the Yapeen tennis courts until late 1979, the evidence of SMA as to the weatherboard structure at the courts — and his rejection that the offending occurred in a different building at the same site or the same building at a different site — meant that in the intervening six months, persons unknown either moved or demolished a weatherboard structure and its concrete floor. This was done at a time when there was no formal tennis club and no maintenance of the playing surfaces of the courts. The moved or demolished structure was structurally sound enough to store tennis equipment and be locked. The persons responsible for the demolition or removal of the structure were thorough enough that there was no trace of its existence when the tin shed came to be built in 1979–81. They also found alternative, unsecured storage for the tennis equipment it held. Such an occurrence is implausible.
And, again the forensic disadvantage to the applicant is noteworthy. The police made no enquires to ascertain when the Tyzack store became the storage facility for the tennis nets or if there was more than one storage location. There were no enquiries of the owners of the property on which the cream weatherboard shed photographed in 2016 stood. There was no evidence that it existed in 1978/79 at that location or at all. There was no evidence that its windows were ‘added later’. There was no evidence that one of its doors was removed. There was no evidence that internally it has or had a shelf or ledge. There was no evidence of what kind of floor it had or has. The only evidence of its purpose came from Leslie Stuchbree who said it was a dairy, which indicates that he was familiar with the building and makes it unlikely that it was used to store tennis equipment and an urn. Further, there was no evidence that ‘a builder’ was responsible for multiple similarly styled sheds in Yapeen pre-1978.
Considering this evidence as a whole, and giving full weight to the forensic disadvantage suffered by the applicant in light of the 40-year delay, coherent reconciliation of the evidence as to the existence and site of the weatherboard building is difficult to achieve. Any such reconciliation is more illusory than real.
The only evidence that there was a weatherboard (or any) structure at the tennis courts in 1978–1979 came from SMA. He was not offended against in the tin shed, which was finished sometime prior to the August 1981 Yapeen Tennis Club AGM. There was no weatherboard (or any) structure, nor any evidence that one had previously existed, at the Yapeen courts in October 1979, being the latest possible date that the Stuchbrees became frequent attendees of those courts. There was no evidence that the cream weatherboard structure photographed by SMA in 2016 on privately owned land existed on that site in 1978-1979 nor if/when it underwent any ‘modifications’. In any event, SMA was adamant that the offending occurred at the tennis courts. He said it was not possible for him to be more clear about that.
In the unique factual scenario of this case, this innate connection between the location of the offending and the fact of the offending itself, meant it was not open to the jury to accept the core account of the offending beyond reasonable doubt and reject SMA’s evidence about the location as a mere trifling mistake. Put differently, if the jury considered that SMA was mistaken about the existence or site of the weatherboard shed, that mistake was so significant and his reliability so damaged that the jury ought to have had a reasonable doubt about his evidence of the anal penetration by the applicant. The offending he described could not have occurred. The isolated weatherboard shed at the tennis courts was pivotal to the applicant’s opportunity to offend and, according to SMA, played an active role in the offending. There was a ritual to the manner of the offending — a millimetre specific location in front of the shelf — and the replacement of the dust on the concrete floor in its aftermath. The 2016 photograph of the cream weatherboard structure shows it surrounded by grassed, fenced paddocks rather than ‘dust, soil or ochre’ and adjacent to a brick structure. Such a location, next to an identified brick cow shed, is consistent with Mr Stuchbree’s evidence that it was a dairy. He also said that it was about 150 meters beyond the Tyzack store.
In so saying, I am cognisant that SMA was recalling matters some 40 years after they were alleged to have occurred when he was 10–11 years of age and there were details about the applicant that he recalled correctly. The applicant was a Scout master, he did drive a red[35]/orange[36] ute with NSW registration plates and he was known to SMA’s mother. Those details, however, were not disputed by the applicant and say no more than that the applicant and SMA were known to one another at the relevant time. They say nothing about whether anal penetration occurred.
[35]As said by SMA.
[36]As said by the applicant.
Finally, in my view this is not a case that the jury’s advantage in listening to and observing SMA overcomes the evident inconsistencies and inadequacies in the evidence. The issues raised by this matter are ones of logic, probability and possibility.

Conclusion

Accordingly, I would grant leave to appeal, allow the appeal, set aside the conviction and enter a verdict of not guilty.
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[2024] VSCA 193

6 September 2024