Pringle v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0122

GEORGE PRINGLE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, NIALL and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 February 2021
DATE OF JUDGMENT:	8 April 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 89
JUDGMENT APPEALED FROM:	[2019] VCC 101 (Judge Fox)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of seven charges of sexual penetration of a child under 16 (two where child under 10) and three charges of indecent act with a child under 16 – Whether substantial miscarriage of justice due to admission of evidence of extensive cannabis consumption by applicant throughout relevant period – Whether verdicts unsafe and unsatisfactory because combination of factors cast inevitable doubt over reliability of complainant’s account.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	SLKQ Lawyers
For the Respondent	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

Niall and T Forrest JJA, whose joint reasons I have had the considerable advantage of reading in draft, would refuse this application for leave to appeal against conviction on both proposed grounds. I respectfully agree with their conclusions on ground 2, which contends that the verdicts are unsafe and unsatisfactory.[1]
[1]See Criminal Procedure Act 2009 (‘CPA’), s 276(1)(a), which provides that the Court of Appeal must allow an appeal against conviction if ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.

It is my misfortune, however, to have reached a different conclusion on the first ground, which broadly concerns the evidence of the applicant’s cannabis use. On that ground, I would grant leave to appeal; allow the appeal; set aside the convictions; and order a new trial.[2]
[2]CPA, s 277(1)(a).

Given the thorough examination in the joint reasons of the complainant’s evidence;[3] her mother’s evidence;[4] the evidence of other prosecution witnesses;[5] the applicant’s evidence;[6] the prosecutor’s final address;[7] and the submissions of the parties;[8] I am able to express my conclusions with relative brevity.
[3]At [43]–[66].
[4]At [67]–[74].
[5]At [75]–[79].
[6]At [80]–[92].
[7]At [93]–[98].
[8]At [106]–[108].

Ground 2: Unsafe and unsatisfactory verdicts?

Essentially for the reasons advanced in the joint reasons, I agree that it was open to a properly instructed jury, acting only upon the admissible evidence, to convict the applicant of sexual penetration of a child under 16 (charges 2, 4, 5, 7, 9, 11 and 12) and committing an indecent act with a child under 16 (alternative charges 3, 6 and 10).

As I followed the oral submissions of the applicant’s counsel — which expanded significantly on the written case — it was contended that seven matters should have led the jury to entertain a reasonable doubt as to the applicant’s guilt: first, the forensic disadvantage flowing from delay; secondly, various internal inconsistencies in the complainant’s account; thirdly, suggested inconsistencies between the complainant’s version and the evidence of others; fourthly, certain other evidence that rendered aspects of the complainant’s evidence improbable (such as the layout of the bathroom); fifthly, the absence of any supporting evidence for the complainant’s account; sixthly, the applicant’s denials, including in his sworn evidence; and, seventhly, the evidence of the applicant’s injuries (and its bearing on the unlikelihood of sexual activity occurring in the manner alleged).

In my view, however, none of these seven matters, individually or collectively, must have compelled the jury to entertain a reasonable doubt about the applicant’s guilt.[9] To so conclude I am, in the main, content to adopt the analysis in the joint reasons.[10]

Ground 1: Was evidence of the applicant’s cannabis use the source of a substantial miscarriage of justice?

[9]M v The Queen (1994) 181 CLR 487, 494; Pell v The Queen (2020) 376 ALR 478, 486 [39].

[10]See [146]–[156].

As I have said, however, I differ from the other members of the Court as to the fate of the first ground.

Unlike Niall and T Forrest JJA, not only am I of the view that the evidence impugned under cover of ground 1 was inadmissible, but I consider that misuse of the evidence by the prosecutor significantly compromised the fairness of the applicant’s trial. The more difficult question is whether a substantial miscarriage of justice was occasioned.[11] I have concluded that it was.
[11]CPA, ss 276(1)(b) and (c).

It appears that the applicant’s counsel at trial objected to the evidence of the applicant’s cannabis use because it could not go in proof of the complainant’s state of mind — that is, as to why she did not complain to her mother, ‘SC’, about the applicant’s sexual predation — and because in any event it was unfairly prejudicial. The gist of defence counsel’s submission may be gleaned from the following passage of discussion:[12]

[The prosecutor] states that the reason for the evidence is to the complainant’s state of mind. It seems vis-à-vis making a complaint to the mother so I don’t take any issue with the evidence from the complainant. Her mother drank, her mother smoked cannabis and was – yes, I suppose the evidence is that she wasn’t particularly present for her as a parent. I can’t object to that and I don’t object to that evidence but I do object and still there’s been no reason raised as to why it should be put that [the applicant] was undertaking an illegal activity in the presence of children other than it’s sought to be put.
I understood it from [the prosecutor] … that it was sought to be put that they did this at parties and gatherings yet the evidence of that complainant at committal was that those gatherings took place not with [the applicant] but at other times so I object to it because it’s incriminatory and not probative and it’s unnecessary for the purpose stated. [The prosecutor] can establish that the mother whether through alcohol or other substances was perhaps not a moral mother but to tarnish [the applicant] with the same brush is both unnecessary and in my submission inadmissible because of the prejudice and lack of probative value.

[12]Emphasis added to this and succeeding passages.

On the other hand, in contending that the evidence was admissible the prosecutor submitted that

the complainant’s evidence is that during the course of her mother’s relationship with the accused they both drank quite a lot of alcohol and smoked quite a lot of cannabis.
…
Her evidence would be that, as I understand it, that there wouldn’t be a day that would go by where they didn’t smoke cannabis, but on occasions they went out – they both went out together to obtain it. Now, I’ve had discussions with [defence counsel]. As I understand it, he doesn’t object to the evidence that the mother used cannabis but he does object to the evidence that the [applicant] was using cannabis. In my submission, one’s tied into the other and the reason the prosecution say it’s admissible is to her state of mind, that is the complainant’s state of mind, about the situation that she was confronted with at the time.
I mean there’s going to be criticisms that she didn’t complain, criticisms about the – as I understand it, and criticism that she didn’t comply [scil, complain?], that she didn’t say anything to her mother, and the relationship that her mother was in with the [applicant] is an issue in the trial and the nature of that relationship is an issue in the trial.

The prosecutor disavowed any notion that evidence of the applicant’s cannabis use might be unfairly prejudicial. He submitted that the evidence is ‘really part of the evidence as to what was happening at the house’ and that

memories are going to be an issue here, who was where, who was doing what, those sorts of things. Now, if the witness said, ‘Well, look, you know they were both regularly consuming alcohol and cannabis on a daily basis’ that’s in my submission relevant to the issue of people’s recollection of events. It’s to – on this part of the circumstance whereas – and it would be creating a false impression to this jury to say that the mother was doing all this but not the [applicant].
I mean it’s not put in the pejorative of sense in the sense, you know – I think we are at the stage now where – and I’ve talked the prejudicial effect outweighing probative value here. We’re at a situation where most people understand that people do smoke cannabis when we’re going back many years so on that – so that’s really addressing the prejudicial probative value side of it but in my submission the context of the offending – the context of the smoking and – smoking cannabis, drinking alcohol in the context of the relationship and the coming and going backwards and forwards and the nature of the relationship is relevant to the circumstance.

Although she did not deliver a formal ruling, the judge’s reasons for not acceding to the application to exclude the evidence may sufficiently be distilled from the following passages in the discussion with counsel. The judge said that

I understand the complainant will give evidence when challenged, if challenged, about why she didn’t complain to her mother that her mother was frequently drinking and smoking cannabis and not particularly present or interested in her or words to that effect. I’m not saying that’s what she’ll say precisely but I will hear a reply from you, [defence counsel], but it does seem to me it’s not a situation where it’s going to be said that your client was shooting up heroin in front of the complainant or anything like that, which would have a far more prejudicial effect. It’s smoking cannabis. ...
…
It seems to me her memory of events and what she says about what was going on in these respective households at various times is very much the subject of challenge by you as to whether she is credible or reliable. To create this divide that it’s her mother drinking and smoking cannabis but not [the applicant] when that’s not in fact what is going on … just seems a very artificial way for the complainant to have to give evidence. I don’t think the prejudicial effect given at smoking cannabis back in 2003/2004 is particularly great, as I’ve said. It would be quite different if it was injecting heroin and all the paraphernalia that goes with that in front of a small child, but her account is very much under attack by you … [a]s is her credibility and her reliability.

I pause to note that the judge’s reference to ‘her memory of events’ is a little curious, in that it appears to be an allusion to the complainant’s memory — it was not suggested that she had consumed cannabis — whereas the prosecutor’s submissions were directed to the applicant’s and SC’s cannabis use and its effect on their memory of events: ‘they were both regularly consuming alcohol and cannabis on a daily basis that’s in my submission relevant to the issue of people’s recollection of events’.

Counsel for the applicant in this Court submitted that evidence of the applicant’s cannabis use was irrelevant and therefore inadmissible. The evidence was also unfairly prejudicial. Separately, he contended that the evidence of the applicant’s cannabis consumption was misused by the prosecutor to an extent that the fairness of the applicant’s trial was unacceptably compromised.

In oral submissions, counsel for the respondent in this Court contended that the evidence was admissible because ‘it explained the unique nature of the relationship’ between mother and complainant. He had previously submitted in writing that one ‘could be forgiven for thinking that the complainant’s household was beset by at least a level of instability due to the drinking, drug-taking and partying’, and that such ‘shared activity and interests had the capacity to be perceived by the child as creating an exclusive bond between mother and assailant’. The applicant’s drug-taking with the mother was therefore ‘relevant at least to the state of affairs in the house that confronted the complainant at the time of the offending’, and ‘thus relevant to the complainant’s state of mind’. It explained why the complainant did not complain to her mother: she ‘might not complain if she felt, essentially, that the mother and applicant shared mutual and exclusive interests’.

Although it had not been put this way by the prosecutor at trial, counsel for the respondent also contended that the evidence ‘assisted in explaining why the complainant might have succumbed to the applicant’s criminal acts without greater protest’. Counsel further submitted that the impugned evidence was relevant to the question of memory. Finally, he submitted that in ‘the current day, the personal use of marijuana by adults may not bear the sort of stigma that it might once have done’; and, in any event, the judge ‘expressly warned the jury against visiting upon the applicant any such prejudice’.

In order to dispose of the first ground, it is necessary to restate some rudimentary propositions.

Hence, by virtue of s 55(1) of the Evidence Act 2008 (‘the Act’), relevant evidence ‘is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’. Section 56(1) provides that, except as otherwise provided by the Act, relevant evidence is admissible.

The Dictionary to the Act defines probative value to be ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue‘.[13] The assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest.[14]
[13]In R v Chee [1980] VR 303, the Court (McInerney, Anderson and Brooking JJ) described the position at common law (at 308):
Putting aside exclusionary rules, the test of admissibility of evidence is whether it is probative: i.e. whether it increases or diminishes the probability of the existence of a fact in issue: Director of Public Prosecutions v Kilbourne, [1973] AC 729, at p. 757; [1973] 1 All ER 440. If evidence offered has this tendency, it may be said to have probative force.
[14]IMM v The Queen (2016) 257 CLR 300, 313 [44] (French CJ, Kiefel, Bell and Keane JJ).

In Wise, this Court observed that determining whether a piece of evidence has the capacity to ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’ involves an exercise in logic.[15] Put another way, in order for evidence to be relevant, it must render a fact in issue more probable than it would be without the evidence. As was said in Washer:[16]

Relevance depends upon whether the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[17] That can be determined only by an analysis of the facts in issue in the proceedings, and the circumstances which bear upon the question of probability. It also requires consideration of the process of reasoning by which information as to the fact of the acquittal could rationally affect the assessment of the probabilities. The word ‘rationally’ is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial.

[15]DPP v Wise (a pseudonym) [2016] VSCA 173, [68] (Warren CJ, Weinberg and Priest JJA).

[16]Washer v Western Australia (2007) 234 CLR 492, 497−8 [5] (Gleeson CJ, Heydon and Crennan JJ) (citation as in original).

[17]Goldsmith v Sandilands (2002) 76 ALJR 1024 at 1025 [2]; 190 ALR 370 at 371. The definition of relevance is taken from the Evidence Act 1995 (Cth), s 55. That legislation does not govern the present case, but the definition reflects the common law.

And in Paulino, it was observed:[18]

In context, s 55(1) of the Evidence Act directs attention to whether the disputed evidence, ‘if it were accepted’[19] by the jury, ‘could’ — not ‘would’ — ‘rationally affect’ the assessment of the probability of the existence of a fact in issue. As was pointed out in Washer, the adverb ‘rationally’ is significant. Thus, there must be a logical connection between the evidence and the fact in issue. If a trial judge is satisfied that a reasonable jury could find such a logical connection, then he or she must determine the evidence to be relevant. Although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised.[20] …

[18]DPP v Paulino (2017) 54 VR 109, 125 [67] (Priest JA) (citations as in original).

[19]See Adam v The Queen (2001) 207 CLR 96, 105 [22] (Gleeson CJ, McHugh, Kirby and Hayne JJ).

[20]Smith v The Queen (2001) 206 CLR 650, 653 [6] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

In the present case, the prosecutor at trial submitted that the fact that the applicant smoked cannabis with the complainant’s mother was ‘admissible as to … the complainant’s state of mind, about the situation that she was confronted with at the time’, and suggested that ‘the relationship that her mother was in with the [applicant] is an issue in the trial and the nature of that relationship is an issue in the trial’.[21]
[21]See [10] above.

Albeit that her reasons for doing so are not entirely clear, the trial judge appears to have accepted the prosecutor’s submission that the evidence that the applicant smoked cannabis with SC could go to the complainant’s state of mind. So much might be drawn from the judge’s remark that she understood that ‘the complainant will give evidence when challenged, if challenged, about why she didn’t complain to her mother that her mother was frequently drinking and smoking cannabis and not particularly present or interested in her or words to that effect’.[22] The judge also seems to have considered that the prejudicial effect of the impugned evidence was not ‘particularly great’ — to arrive at this conclusion she must have first concluded that the evidence was relevant — drawing a contrast between cannabis use and ‘injecting heroin … in front of a small child’. I am unable to see any point, however, at which the judge directly ruled upon the prosecutor’s contention that the evidence of SC’s and the applicant’s cannabis use was admissible because of its possible effect on their memories.[23] That is regrettable given the prominence that the prosecutor had given to the submission that ‘memories are going to be an issue here, who was where, who was doing what, those sorts of things’, and that ‘they were both regularly consuming alcohol and cannabis on a daily basis [which is] relevant to the issue of people’s recollection of events’.
[22]See [12] above.
[23]Compare [13] above.

It is plain to me that the prosecution at trial had anticipated that there was a possibility that the complainant’s failure to make a timely complaint to her mother might in the jury’s eyes reflect adversely on her credibility and reliability. The prosecution therefore thought to meet that possibility by attempting to adduce evidence in an endeavour to account for her failure to complain to her mother. But in her evidence the complainant did not claim that her reluctance to complain to her mother was based on any perception that she would not believe her because she had a close relationship with the applicant based on their shared interest in cannabis (and alcohol). Rather, as the complainant explained in her evidence, her failure to complain was based on the fact that she was not close to her mother, and did not trust her. Nothing in her evidence drew a connection between her distance from, and lack of trust in, her mother, and her mother’s use of cannabis with the applicant. Thus, the complainant’s evidence included the following:

[PROSECUTOR]: Did you ever tell your mother about what was happening?---No.
Why didn’t you tell your mother?---I’m not close with my mother and my mother gave me no indication that I could trust her or confident – like with anything like this and I didn’t think she’d believe me.

And in cross-examination:

[DEFENCE COUNSEL]: You don’t have good relations with your mum?---No.
You see her now?---No.
In fact, in your evidence, one of the things you say is you didn’t tell your mother, you didn’t make any complaint about this at the time because your mother wouldn’t believe you, is that right?---My mother wouldn’t believe me, I didn’t trust her as far as I could throw her.

In circumstances in which the evidence established that the complainant’s failure to complain was the product of her poor relations with, and distrust of, her mother, it is difficult to see how, as a matter of logic, the absence of good relations, and the lack of trust, could be sheeted home to the applicant’s shared interest in, and consumption of, cannabis with her mother.

It must be remembered that the prosecution sought to introduce evidence as to the complainant’s state of mind, not her mother’s. One thing that was not satisfactorily explained by the prosecutor at trial, or by the respondent’s counsel in this Court, was how the complainant’s perception that her mother had a relationship with the applicant which included joint cannabis use might have led the complainant to believe that her mother would not have been receptive to complaints about the applicant’s sexual predations. No attempt to connect the two was made. It was the fact that she did not trust her mother, and did not have good relations with her, that mattered, not the reasons for it.

Significantly — and to risk repetition — nothing in the evidence suggested that her lack of trust in her mother, and her poor relations with her, flowed from the complainant’s awareness that the applicant and her mother used cannabis together. Indeed, to resort to analogy for the sake of argument, there would have been the same lack of connection if the applicant and the complainant’s mother had enjoyed a sexual relationship; or one based purely on friendship; or one based on a shared interest in another joint pursuit such as gaming, chess, bridge, yoga or cooking (although, of course, a joint interest in activities such as those could not have attracted the jury’s opprobrium).[24]
[24]Compare [112] below.

The prosecutor’s other submission at trial — that ‘memories are going to be an issue’, and that the applicant’s and SC’s cannabis use was ‘relevant to the issue of people’s recollection of events’[25] — was not particularly well thought through. Albeit that the point was neither taken at trial nor in this Court, if the evidence of cannabis use was sought to be introduced as a pre-emptive attack by the prosecution upon the reliability of SC’s or the applicant’s memories — and it appears to be plain that it was — then I consider that the evidence infringed ‘the credibility rule’. For that reason it was inadmissible at the threshold.
[25]See [11] above.

Section 102 of the Act contains The credibility rule, which is expressed in blunt and unequivocal terms: ‘Credibility evidence about a witness is not admissible’. The Dictionary to the Act provides that the credibility of a witness ‘includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence’ (the prosecutor in the instant case having suggested that evidence of cannabis use was relevant to witnesses’ recollection of events). By s 101A, ‘Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that … is relevant only because it affects the assessment of the credibility of the witness or person’. An exception to the credibility rule — which was not invoked in this case — is contained in s 108C, which, by leave of the trial judge, permits persons with ‘specialised knowledge based on the person’s training, study or experience’ to give evidence of opinion if such evidence could substantially affect the assessment of the credibility of a witness.[26] Once it is appreciated that the evidence of cannabis use was inadmissible on the first basis advanced by the prosecution, then it is clear that the only other basis advanced for its admissibility — its effect on memories — fell foul of the credibility rule.
[26]See Audsley v The Queen (2014) 44 VR 506 (Maxwell P, Weinberg and Priest JJA). See also R v Hickey & Komljenovic (1995) 89 A Crim R 554.

For these reasons, the impugned evidence was irrelevant and inadmissible.

As I have indicated, the applicant’s cannabis consumption with the applicant’s mother had no capacity whatsoever to bear on the identified fact in issue; that is, as an explanation for the complainant’s failure to complain to her mother about the applicant’s abuse. The evidence therefore was not admissible. That being so, it is not much of a response to the wrongful admission of irrelevant and prejudicial evidence to assert that its prejudicial effect was not ‘particularly great’. Quite simply, the evidence should not have been admitted, and the applicant should not have had to run the risk that the jury would use it to his prejudice.

But in any event, I part company with those who think that the average juror would either look benignly upon, or not be greatly prejudiced by, evidence of the applicant’s cannabis use. I do not agree that the potential prejudice flowing from the evidence would not be ‘particularly great’. In my view, many people in the community would regard persistent cannabis use with disfavour or disdain. Hence, I consider that the potential for prejudice to a fair consideration of the applicant’s case at trial was significant.[27]
[27]Compare [115] below.

Indeed, regrettably I consider that the prosecutor’s approach to the evidence of the applicant’s cannabis use was a calculated appeal to prejudice.

In their joint reasons, the other members of the Court have set out the manner in which the prosecutor dealt with the evidence of the applicant’s cannabis use. I am thus absolved of the need to recapitulate those aspects of the evidence[28] or the prosecutor’s final address[29] to which they have made reference.
[28]See [88]–[91] below.
[29]See [94]–[98] below.

I agree with the observations on the joint reasons that it was ‘inappropriate’ and ‘regrettable’ that, despite the trial judge’s admonition, the prosecutor saw fit to use the unusual expression ‘drugging and drinking’ repeatedly in his final address; and, to make matters worse, wrongly attributed the expression to the applicant.[30]
[30]See [128], [129] and [130] below.

I also agree that it is not easy to understand what the prosecutor meant when he said that by using the phrase ‘drugging and drinking’ the applicant had ‘let the cat out of the bag’,[31] albeit I consider that it was designed to suggest to the jury — quite unfairly — that the applicant had inadvertently let slip an incriminating matter that he had attempted to conceal. To that extent, I agree that it is possible to discern an undercurrent to denigrate the applicant as a person who could not be trusted because he was a drug user and a person who was forced to admit to his drug-taking when confronted.[32] But I consider that there was significantly more than a ‘hint’ of prejudice that the applicant, as a person engaged in ‘drugging and drinking’, might be the kind of person that committed the crimes with which he was charged.[33]
[31]See [132] below.
[32]Ibid.
[33]Ibid.

Unhappily, I cannot agree with the view the call to prejudice embedded in the prosecutor’s ‘inaccurate rhetoric’ did not produce a substantial miscarriage of justice.[34] In my view, given the manner in which the prosecutor had exploited evidence of the applicant’s cannabis use, the judge’s direction not to misuse the evidence was insufficient to ameliorate the potential prejudice flowing to the applicant.[35] Moreover, it is difficult to see that the failure by the applicant’s counsel at trial to ask for a discharge of the jury in the circumstances could have been the product of a sound forensic choice.[36]

[34]See [135] below.

[35]Compare [137] below.

[36]Compare [138] below.

In the prosecutor’s hands, the evidence of the applicant’s cannabis use was used to disparage the applicant and the evidence he gave in his own defence. Plainly, it was used as a springboard for the prosecutor to attack the applicant’s credit unfairly on the basis that he had ‘let the cat out of the bag’, and to suggest that, because he was a drug user, his evidence was not worthy of belief. The jury’s opinion of the applicant’s truthfulness, credibility and reliability was critical to the acceptance or rejection of his evidence, and as to whether his evidence might have led the jury to have entertained a reasonable doubt about his guilt. In those circumstances, I find it impossible to say that the wrongful admission of the impugned evidence, and its use by the prosecutor, could not have made a difference to the outcome of the trial. Had the evidence not been wrongly admitted and misused by the prosecution, I consider that conviction was far from inevitable.[37]
[37]Baini v The Queen (2012) 246 CLR 469, 479–82 [26]–[33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Andelman v The Queen (2013) 38 VR 659, 677 [85] (Maxwell P, Weinberg and Priest JJA).

I would uphold ground 1; grant leave to appeal; allow the appeal against conviction; set aside the convictions; and order a new trial.

NIALL JA

T FORREST JA:

Following a trial in the County Court the applicant was found guilty of seven charges of sexual penetration of a child under 16 (two where the child was under 10)[38] and three charges of indecent act with a child under 16.[39] A judge sentenced the applicant to 11 years and 8 months’ imprisonment with a non-parole period of 7 years and 3 months.

[38]Charges 2, 4, 5, 7, 9, 11 and 12.

[39]Charges 3, 6 and 10.

The applicant seeks to appeal his conviction on two grounds. First, that a substantial miscarriage of justice occurred because the judge allowed the prosecution to lead what is said to be irrelevant and prejudicial evidence of extensive consumption of cannabis by the applicant throughout the relevant period. Second, that the verdicts of the jury are unsafe and unsatisfactory based on a combination of factors which the applicant submits cast inevitable doubt over the reliability of the complainant’s account and should have caused the jury to entertain a reasonable doubt as to the applicant’s guilt.

It is convenient to begin by surveying the evidence at trial.

The complainant’s evidence

The complainant was born on 1 May 1994. In the early 2000s, she was living with her mother (‘SC’) and two brothers, one older and one younger, at a house in Forest Hill (‘Forest Hill’). The applicant was living at an address in Boronia (‘Boronia’). SC was a friend of the applicant, having known each other since around 1988.

The complainant said that the first time she recalled meeting the applicant was on the verandah at Forest Hill. The complainant said that the applicant would visit Forest Hill at least a couple of times a week. The complainant said she believed that ‘at the start [her mother and the applicant] were just friends’ and that when the applicant visited he and her mother would ‘sit around and drink basically’. Later in her evidence, the complainant said she came to believe that her mother and the applicant were in a sexual relationship.

The complainant said that she, her mother and her younger brother would visit Boronia a couple of times a week and when they went there her mother and the applicant would be ‘[s]itting around, drinking, smoking marijuana and that — watching TV basically’. The complainant said that she, her mother and younger brother stayed overnight at Boronia ‘once or twice a week sometimes’ over a few months when she was eight and a half years old. When they stayed overnight at Boronia, her mother would sleep in the applicant’s room and the complainant and her younger brother would sleep in a second bedroom which contained two single beds. She described the house as comprising the applicant’s room, a laundry, kitchen, bathroom and a spare bedroom with two beds in it.

In her evidence the complainant said that the first time anything happened was when she was about eight and a half years old and living in Forest Hill.

Charges 2, 3 and 4 arose out of a single incident, which the complainant placed in very early 2003, when she was aged between eight and nine years old. Her account was that she was visiting Boronia with her mother. Her mother left the house to run some errands, leaving the applicant alone with the complainant. The applicant and the complainant were seated on the couch when the applicant started to touch the complainant’s leg and move his hand up her leg to touch her vagina. He then inserted his fingers into her vagina (charge 2). The applicant then got off the couch and onto his knees and knelt in front of the complainant. He pulled off her underwear, held open her legs and used his tongue to lick her vagina (charge 3).

The applicant told the complainant that it was okay and that he liked her. He put his fingers inside her vagina (charge 4). The complainant said that the applicant got up and went to his room and she put her underwear back on and got in the foetal position on the couch. Approximately 10 minutes later, the complainant’s mother returned. The applicant acted as though nothing had happened, and the complainant did not tell her mother. She said that the applicant and SC ‘just went off [to the applicant’s room] and did what they usually do’.

Although the complainant was not able to recall how many times she had stayed at Boronia, she said that it was more than 15 times. She said that on a number of those occasions, which she estimated to account for 90 per cent of the time she stayed at Boronia, the complainant would approach her when her mother was in the shower or asleep, put his hand in her underwear and put his fingers inside. These incidents were uncharged acts.

The complainant said that in around April 2004, when she was ‘almost turning’ 10 years of age, her family moved to a house in Endeavour Hills (‘Endeavour Hills’). She said that, thereafter, the applicant visited Endeavour Hills with varying frequency, around once or twice a week, and that she ‘wouldn’t go a week without seeing him’. The complainant said that shortly after moving to Endeavour Hills, she awoke to find the applicant with his hand going down her pants. He then inserted his fingers into her vagina (charge 5). He told the complainant to be quiet, and that it was all right. The complainant described the impact of the incident as follows: ‘I was an almost ten-year-old girl that had gotten woken up by a fully grown man putting his hand down my pants … I was not in great state … I was absolutely mortified.’

The complainant said that these incidents happened ‘almost every time he was over … at least once a week minimum’. She said that her mother left her alone with the applicant on multiple occasions when she went out shopping, to see friends, to pick up the complainant’s brother or take him to sport. The complainant said that at times the applicant would stay the night or leave really early in the morning. She said that the applicant and her mother would sit around and drink and smoke cigarettes and marijuana. In cross-examination, the complainant said that ‘there were bongs all over the kitchen bench, bongs on the coffee table’.

Asked if she could recall specific incidents at Endeavour Hills, the complainant said that the first one was in 2004, when she was in Year 5. She was in the bathroom to have a shower. She said that the applicant entered the bathroom through the toilet door. There was a bench between the shower and the bath, and the applicant made the complainant lie back on it. He then licked her vagina with his tongue (charge 6). The applicant then inserted his penis into the complainant’s vagina while he was holding her arms (charge 7). The complainant said that this was the first time he had inserted his penis into her. The complainant said that the applicant was saying she was his and it was beautiful.

The complainant gave evidence of two other incidents in the bathroom. She said that the first of these occurred not long after the incident just described and occurred at the end of Year 5. She said that she was in the bathroom, still in her school dress. The applicant entered the bathroom and made her lie on the bench between the shower and the bath and pulled her underwear down. The complainant said that ‘basically the patterns mostly are repeated from the first incident in the bathroom’. The applicant then inserted his penis into her vagina (charge 9). The complainant said that after the incident she got in the shower and ‘scrubbed [herself] because [she] felt disgusting’.

The complainant then described a third incident in the bathroom when she was at the start of Year 6. She said that she arrived home from school and went into the bathroom to have a shower. The applicant came in, licked her vagina (charge 10) and then inserted his penis into her vagina (charge 11).

In relation to the second bathroom incident, the complainant was asked whether the applicant had ‘do[ne] anything with his tongue or mouth’. The complainant replied: ‘I can’t recall. I mix all three incidents together, so I’m trying really hard to keep them separate. I’m fairly sure it happened every time.’

The complainant next described an incident in which the applicant went into the complainant’s bedroom where she was lying on her loft bed. He rubbed her vagina and inserted his fingers into her vagina (charge 12). She said this was the last occasion and it occurred in early 2005.

The complainant said that she left home at 14 years of age.

The complainant was cross-examined to expose differences or inconsistencies in the various accounts of the offending she had given over time.

In her evidence-in-chief, the complainant said that she first made a complaint about the offending to a nurse at Stepping Stones, an adolescent psychiatric unit at Clayton Hospital. This appears to have been in 2007. She said that she gave only a general description of what had happened. She said that she was in a psychiatric ward at Stepping Stones when she described offending as having occurred over six months and only involving the use of the applicant’s hands. In cross-examination, she accepted that she had said at the committal hearing that her disclosure at Stepping Stones occurred in a context where counsellors wanted answers and the complainant wanted to get out of the ward.

Her second account was to a counsellor, Ms Ridgway, and it was put to her that this account lacked detail and that she had only spoken of the offending because of what she had earlier said at Stepping Stones. In substance, it was put that the differing accounts reflected the fact that she was fabricating allegations and embellishing her evidence. The complainant denied this.

She said that she told ‘everything’ to Detective Mathews.

The complainant said that she did not tell her mother what was happening. When asked why, she replied: ‘I’m not close with my mother my mother gave me no indication that I could trust her or confident — like with anything like this and I didn’t think she’d believe me.’ In cross-examination, when asked to confirm that evidence, the complainant said: ‘My mother wouldn’t believe me, I didn’t trust her as far as I could throw her.’ She said that her mother ‘doesn’t believe anyone unless it’s to do with her or to get her own gain’.

It was put to the complainant that her evidence about staying in Boronia was wrong and that during the period in which she said the offending occurred there were other people apart from the applicant who were living there. The complainant was pressed in cross-examination on when the offending commenced. The complainant said that it was probably in early 2003, in January or February. She said that it continued until 2005. It was put to the complainant that in 2003 the applicant had a partner, SM, who had a son, JM, who was about the same age as the complainant. It was put that SM and her son lived at Boronia in 2003, until August or September of that year, and that JM slept in the second bedroom. The complainant said that she had no recollection of meeting them.

It was also put to the complainant that a friend of the applicant, T, and his partner moved into Boronia in January 2004 and slept in the second bedroom. The complainant said that she did not remember anyone living at Boronia and reiterated that she would have stayed at Boronia on occasions in early 2004 before her family moved to Endeavour Hills.

The complainant was also cross-examined in some detail about the incidents in the bathroom with a view to establishing that her account was inconsistent with the layout of the bathroom and that it was highly improbable that someone of the applicant’s height could have sexual relations in the position suggested by the complainant. The complainant was cross-examined about the physical movements of the applicant during the alleged offending. On a related topic, she was asked if she could recall whether the applicant had been injured during the time of the offending. The complainant said that she had a vague memory of an injury and that she recalled seeing him on crutches but did not remember him being on crutches at the time of the offending.

We note that there were two agreed facts in relation to injuries to the applicant’s legs. First, as a result of a motorbike accident in late 1992, the applicant suffered a broken right femur which required the permanent insertion of a rod of 380 mm in length and 13 mm in diameter and two screws in that femur. Second, as a result of a fall from a house roof in November 2003, the applicant suffered a broken right heel.

The complainant’s mother, SC

SC gave evidence that she and her children lived in Forest Hill for 18 months. The family moved to Endeavour Hills in April 2004. A residential tenancy agreement for Endeavour Hills with a date of April 2004 was tendered in evidence.

SC said that she had known the applicant for a number of years but had lost contact with him. She said that she reconnected with him when she was living in Forest Hill. She said that when she was living at Forest Hill she would go to Boronia to visit the applicant ‘probably once a week or so’ and that ‘[her] children were nearly always with [her].’ She denied that they would stay the night, saying: ‘There wasn’t very much room there. It was only a small two bedroom house. One room was set up with computers and things like that in it.’

She said that sometimes they would stay into the evening, maybe 8 or 9 o’clock, but not stay overnight. She said that sometimes she and the applicant would drink and smoke cannabis. She said that she would always drive home with her children, although she also said that she lost her license for drink-driving while she was living in Forest Hill and, later in the evidence, said that she was drunk a lot of the time.

She said that when they moved to Endeavour Hills the applicant would visit fairly often: ‘maybe … once or twice a week sometimes. Sometimes once every other week.’ She said that sometimes he would only stay for a few hours and sometimes he would stay for ‘a few days if [they] were drinking too much or partying’. She explained that ‘there was always drinking around [her] house. Always’, and gave evidence of sometimes smoking marijuana in the laundry.

SC said that she was not always there when the applicant visited. She said that sometimes she would leave the applicant to look after the children if she went out to do something or go up the street or visit someone and sometimes that would be for a few hours.

She denied being in a sexual relationship with the applicant. She said in evidence-in-chief that he would sometimes sleep in her bed but that she would not sleep in the bed with him. She said she broke off contact with him in late 2004.

In cross-examination, SC was asked whether she could recall the applicant breaking his ankle or heel as a result of a fall at her house, and she said that she could not recall. Taxed on her memory, she agreed that she was drinking a lot and smoking marijuana in the laundry. She remembered that the applicant was seeing a woman called SM, who had a son, and that SM was staying at Boronia a lot, but SC was not aware that SM was living there.

In re-examination she said that ‘[she] was very much not in a — not in a good place for a very long time’ and there were gaps where she could not remember events except that she was always with her children.

Wendy Aurient

Wendy Aurient is a registered nurse. She was working at Stepping Stones when the complainant was admitted in 2007. She said that the complainant reported to her that she had been the victim of sexual abuse which began when she was 10 years old and lasted for six months. The complainant reported that the perpetrator was a man called George who was a friend of her mother’s and that it consisted of ‘touching and penetrations sexual assault’.

Elena Ridgway

Ms Ridgway is a psychologist. She started seeing the complainant for counselling in July 2015. Her notes from a consultation in late July 2015 record the complainant telling her that she had flashbacks from past experiences and that she had a vison of her mother’s partner at the time getting into bed with her and touching her. She said that at first it was just touching but it became more. The complainant did not elaborate. She said that the abuse continued for two years.

At a further consultation in March 2016, Ms Ridgway’s notes record that the complainant ‘spoke about the way in which the perpetrator, her mother’s friend, had groomed her using words and fear. [The complainant] also spoke about some of the physical forms of abuse and the many places in which he had abused her.’

In cross-examination, Ms Ridgway said that she had asked the complainant specifically whether there had been penetration and the complainant did not say that penetration had occurred.

The informant

The informant, Detective Senior Constable Mathews, gave evidence that the complainant told police in March 2016 that the first time anything happened was just before moving to Endeavour Hills. In a second statement to police, the complainant changed the date of the offending to 2004.

The applicant’s evidence

The applicant gave evidence. He said that he moved to Boronia in approximately 2001. Initially he lived alone, but in January 2003 his then partner SM and her son moved in, and stayed until September 2003. He said that SM stayed in his bedroom and her son stayed in the second bedroom which contained a single bed, desk and set of drawers. When SM and her son moved out, the applicant set up the bedroom as a ‘storage computer room’ again and it contained a desk, computer and boxes. He lived alone between September 2003 and January 2004.

A friend of the applicant’s, T, and his partner, stayed in the second bedroom until July 2004. The applicant said that when they moved in they put a projector and large white projector screen, the full length of the wall and window, in the lounge room. We note that in her evidence the complainant referred to her memory of seeing a projector. In cross-examination, the applicant said that there was a queen-size bed in the second bedroom from January to July 2004.

The applicant said that he had known the complainant’s mother, SC, since he was 18 but had lost contact with her. He said that they resumed contact in approximately 2001 or 2002 when he moved to Boronia. He denied that she had slept in his bed or that they had ever been in a sexual relationship.

The applicant said that he had a clear memory of contact with the complainant’s family in September and October 2003. He said that he would pick up the complainant, SC and her son from Forest Hill and would either drop them off in Mountain Gate or they would come to Boronia and he would drop them off at Mountain Gate an hour or two later. In cross-examination, the applicant said that they would visit regularly — approximately once every week or every couple of weeks for about a month and a half or two months. He said there were about eight to 10 visits to Boronia in late 2003. The applicant denied ever being left alone in his house with the complainant or her brother, and denied that they ever stayed at his house. He said that occasionally he cooked dinner for them and they would be at his house for half an hour to an hour, an hour and a half maximum.

The applicant said that they stopped coming to his house a week after he was injured on 14 November 2003 as a result of falling off the roof of a house, breaking his heel and ankle. He said that they only came to check on him once, a week after the accident. He required plaster for 16 weeks and was on crutches, including for a couple of weeks after the plaster was removed. He said that as a result of this injury, and an earlier injury sustained in a motorbike accident, he had cramps, pain and that he was ‘pretty much in agony 24 hours a day’. He said that from 2003 he had very limited movement in his leg and was not really able to kneel without pain.

He said that he could not kneel on the ground, as described by the complainant, as it would be ‘extremely painful’. He said that he could not perform sexual intercourse in the way the complainant described because he had a screw through his femur, near his knee, and it would be ‘excruciating’.

He denied going to Endeavour Hills apart from on two occasions. The first time, which he said was probably in April 2004, he drove there with his two Rottweilers, after SC had asked him to have a look at her computer. He said that he only stayed for 10 minutes or so and one of his dogs attacked another dog on the footpath. The second occasion was in July 2004 when his mother drove him there.

He said that neither the complainant nor SC had ever visited Boronia until June 2004 when they came to look at a Rottweiler puppy, on 11 June, and to collect it a couple of weeks later. In cross-examination, he clarified that he meant that prior to that time, they had never driven to his house; prior to 2004, he would pick them up.

The applicant said that he sometimes ‘had a few drinks‘ with SC at Forest Hill or Boronia and they occasionally smoked marijuana but not in front of the children. He said they smoked in the laundry or in his spare room. He denied ever attending Endeavour Hills with groups of people on any nights or drinking alcohol or smoking cannabis there.

The topic of cannabis use was taken up with the applicant in cross-examination at a number of points. The applicant denied smoking cannabis and drinking at Endeavour Hills, saying that it was ‘totally incorrect’ and ‘never happened’. He said that prior to the accident he smoked cannabis at his house and he may have had some at Forest Hill. He denied smoking cannabis after his accident in November 2003 and said that since that time he may drink alcohol socially but not very often.

The applicant said that he had no contact with SC after the middle of 2004. When asked why he had ceased contact, the applicant replied: ‘It was a social drug and drink friendship and I’d given all that up.’

The following exchange then occurred:

Prosecutor:… What do you mean by social drug and drink relationship? What do you mean by that?
Applicant:We would have drugs and drink together and that was about it. Just friends.
Prosecutor:What drugs would you have together?
Applicant:Just marijuana.
Prosecutor:And where would you have the marijuana?
Applicant:Her house, my house and – – –
Prosecutor:Her house?
Applicant:In Forest Hill.
Prosecutor:Yes?
Applicant:And my house in Boronia.
Prosecutor:Yes?
Applicant:And that’d be it.
Prosecutor:What, you’d stopped smoking by the time she was at Endeavour Hills, had you?
Applicant:Yes.
Prosecutor:Yes. How often would you have a drug and drink meeting with the mother … ? How many of these occasions, the visits that you’ve talked about, how many of those involved a drug and drink socialising?
Applicant:Usually once a week, usually on a Friday, approximately. Sometimes a fortnight.
Prosecutor:How would she get home?
Applicant:I would drop her off.
Prosecutor:After drugging and drinking?
Applicant:Few drinks, few pots, yes.
Prosecutor:And you’d get in your car and drive – – –?
Applicant:Yes.
Prosecutor:– – – to Endeavour Hills - no, sorry, to you say to Forest Hill, yes?
Applicant:Yeah, Forest Hill.
Prosecutor:But you say she never stayed at your place?
Applicant:No, never.
Prosecutor:And you say the children never went to bed at your place?
Applicant:No, never.
Prosecutor:What would they do while you were drugging and drinking?
Applicant:Sit on the floor, watch TV, throw the dog – throw the ball to the dog, or – – –
Prosecutor:You’d do it in the same room as them, would you?
Applicant:No.
Prosecutor:Which room would they go to?
Applicant:The lounge room.
Prosecutor:Which room were you drugging and drinking in?
Applicant:My room or – or the spare room.
Prosecutor:But you say that it all stopped by the time she moved to Endeavour Hills? Is that your evidence? So the drugging and drinking with her – – –[40]

[40]Emphasis added.

At that point counsel for the applicant objected to the use of the term ‘drugging’ because of its pejorative meaning, to which the prosecutor replied: ‘it’s the expression I use.’ The judge then told the prosecutor: ‘[p]erhaps … you could use the expression “smoking cannabis and drinking”.’

Cannabis use in final addresses and charge to the jury

In order to deal with ground 1 it is necessary to refer to how the topic of cannabis was used by the parties in their final addresses to the jury and dealt with by the judge in her charge. We shall refer to those matters now.

During his final address to the jury the prosecutor dealt with the reasons why the complainant had not complained about the offending at the time it had occurred. It will be recalled that the complainant made the first complaint when she was an inpatient at Stepping Stones.

In the course of his address, the prosecutor told the jury that the complainant had not told her mother because she did not believe her mother would care, adding: ‘you’ve heard the evidence about what was happening at the house and you could understand why she might think that rightly or wrongly’. The prosecutor then referred to reasons that victims of sexual assault may delay or hesitate before reporting offending.

The prosecutor then dealt with the evidence of SC, which he submitted to the jury painted a picture of a ‘pretty dysfunctional’ environment. He told the jury that they might think that SC’s memory was ‘pretty unreliable’ because she described herself as being in a drug-and-alcohol-induced haze throughout this period. At that point the prosecutor said to the jury:

The other interesting comment, piece of evidence that came out was the accused’s evidence that he’d go over there ‘drugging and drinking’, to use his expression. You’d perhaps understand in a sense why he said that; he let the cat out of the bag, ‘drugging and drinking’.[41]

[41]Emphasis added.

A little further on in his address, the prosecutor turned to the applicant’s evidence. He told the jury:

You’ve got … [SC] giving her view of things, and the daughter giving her view of things. The accused, in my submission his account was truly incredible. It was untrustworthy. It was brazen in its audacity, and it was tailored to meet the case against him. He knew that there was a dysfunctional relationship between mother and daughter, in my submission. He knew [SC] was consuming alcohol and drugs. He’d been consuming them himself. And that his relationship with her was, to use his own expression, ‘drugging and drinking’. And he was not prepared to tell you the full truth the whole time, unless it became convenient or he had to have a change of mind.
...
And then later in cross-examination he conceded that when he visited Forest Hill, he was ‘drugging and drinking there’. So initial story, ‘Oh, just pick them up, drop them off’. Later on, drugging and drinking. That’s at p.277. I’m just summarising this.[42]

[42]Emphasis added.

After referring to the discrepancy in the evidence as to how often the applicant had visited Endeavour Hills he continued:

So there’s a clear contrast here in Endeavour Hills. You’ve got the evidence of … the mother, evidence of [the complainant]. They’re consistent in the sense that there was — the accused was a regular visitor, he was staying there for lengthy periods of time, there were other people there, there was consumption of alcohol and drugs, and you might think that that’s, in that sense, consistent with the accused’s own description of a drugging and drinking friendship, but one that he wasn’t prepared to admit involved the attendances at Endeavour Hills, and chose to tough it out and just deny it, in my submission.[43]

[43]Emphasis added.

No objection was taken to the prosecutor’s final address.

The judge directed the jury in conventional terms that they must decide the case on the evidence and put aside any feelings of sympathy or prejudice. Specifically, the judge told the jury that they should not be influenced by the fact that the applicant admitted to smoking cannabis and directed them that judgment or prejudice had no part to play in their decision.

In this context, it is notable that the prosecution adduced evidence of a number of uncharged sexual acts. For example, the complainant said that she had stayed at Boronia more than 15 times and that on about 90 per cent of those occasions the applicant would come into the room she was in, his hand would go into her underwear and he would put his fingers inside. In relation to Endeavour Hills, the complainant said that the applicant put his fingers in her underwear ‘almost every time he was over’ and he was over ‘at least once a week minimum’. In relation to this evidence, the judge instructed the jury that the evidence was ‘not directly related to any of the offences charged’ but had been ‘led by the prosecution for the limited purpose of showing that what [the complainant] alleges occurred did not happen out of the blue, and was not isolated conduct. It puts her allegations in a complete and realistic context’. The jury were directed not to use that evidence for any other purpose.

Ground 1

The applicant contends that he has suffered a substantial miscarriage of justice because the judge permitted the prosecution to adduce what is said to be irrelevant and prejudicial evidence of extensive consumption of cannabis by the applicant throughout the relevant period.

At trial, the applicant did not object to evidence that SC drank and smoked cannabis and the evidence that SC ‘wasn’t particularly present for her as a parent’. Indeed, as things transpired, the applicant’s counsel cross-examined SC on the basis that cannabis and alcohol had affected her memory. However, objection was taken to evidence that the applicant had consumed cannabis in the presence of the children on the basis of its prejudice and lack of probative value. The applicant submitted that ‘[the prosecutor] can establish that the mother whether through alcohol or other substances was perhaps not a moral mother but to tarnish [the applicant] with the same brushes is both unnecessary and … inadmissible because of the prejudice and lack of probative value’.

The prosecutor submitted that the evidence of cannabis use was relevant to the complainant’s state of mind and as part of the evidence as to what was happening at the house. The prosecutor submitted that memories were going to be an issue: ‘who was where, who was doing what, those sorts of things’. He submitted that it would create a false impression for the jury if evidence was adduced about SC’s cannabis use but not that of the applicant. He submitted that there was little prejudicial effect and that ‘smoking cannabis, drinking alcohol in the context of the relationship and the coming and going backwards and forwards and the nature of the relationship is relevant to the circumstance’.

The ruling

The judge accepted that the evidence was relevant. First, it might provide an explanation as to why the complainant did not complain to her mother, namely, that she was frequently drinking and smoking cannabis and not particularly present or interested in the complainant. Second, the judge noted that the complainant’s memory of events and her account of what was going on between the two households and her understanding of the nature of the relationship between the applicant and SC were the subject of challenge by the applicant and it would be artificial for the complainant to be permitted to give evidence about her mother’s drinking and drug use without also being allowed to give evidence on the same topic concerning the applicant. The judge considered that the prejudicial effect was not ‘particularly great’, drawing a contrast between cannabis use and other forms of drug-taking, using the example of injecting heroin in front of children.

The parties’ submissions

The applicant makes two points. First, he submits that the evidence was inadmissible on the basis that it was not relevant to any issue. Second, he submits that the prejudice associated with drug-taking, combined with how the prosecutor unfairly deployed the evidence, resulted in a substantial miscarriage of justice.

The respondent submits that the evidence was relevant to explain why the complainant had not complained to her mother about the offending. It formed part of the body of evidence that explained why the complainant had a poor relationship with her mother and ‘didn’t trust her as far as [she] could throw her’. The respondent submits that it could well be understood why a young child might hold such a view in circumstances where the applicant and her mother had a relationship that was characterised by drinking and drug-taking. The respondent submits that such shared activity and interests had the capacity to be perceived by the complainant as creating an exclusive bond between her mother and the applicant.

The evidence of cannabis use was also said to form part of the ‘state of affairs in the house’ and could help to explain the complainant’s state of mind — why she did not resist the offending or complain to her mother.

Consideration

In order to be admissible, the evidence of cannabis use by the applicant had to be relevant to a fact in issue.[44]
[44]Evidence Act2008 s 55.

When the issue of the admissibility of the evidence arose, the applicant did not suggest that the fact the complainant had not complained to her mother at the time of the offending, and the reasons for not doing so, were not issues in the trial. Consistently with that understanding, no objection was taken to the prosecutor asking the complainant in her evidence-in-chief why she had not told her mother about the offending. Equally, one of the matters relied on by the applicant’s counsel in his closing address was that SC had not seen nor had any awareness of anything that suggested sexual abuse.

Underpinning the admission of the evidence concerning SC’s cannabis use was an acknowledgement that the evidence was capable of reflecting on the poor relationship between mother and daughter. At the time of her ruling, the judge understood that the complainant would give evidence, if challenged, that her reasons for not complaining about the offending included that her mother was frequently drinking and smoking cannabis with the applicant. It was not submitted on the present application that her Honour was wrong to proceed on that basis. The ruling was given proleptically, in advance of the complainant’s evidence, and on the basis of the depositions. Whether or not the complainant ultimately gave that evidence did not bear upon the correctness of the ruling at the time it was made. Of course, if the complainant did not give that evidence, that may have opened up the possibility of the ruling being revisited during the trial, but no such application was made. Further, a departure between the evidence and the premises on which evidence was adduced might be relevant in this Court to the question whether there has been a substantial miscarriage of justice.

Returning to the ruling, once it is recognised that the premise for the admission of evidence as to SC’s cannabis use included the complainant’s reasons for a failure to complain to her, it is not immediately obvious that the applicant’s cannabis use bore on that question. However, if the complainant believed that her mother would not be receptive to any complaint, then the fact that, from the perception of the complainant, her mother was in a very close relationship with the applicant, possibly of a sexual nature, in which they spent their time together drinking and smoking cannabis, might cause the complainant to reason that her mother would be even less likely to believe her.

In our opinion, it was open to the judge to conclude that the closeness of the relationship between SC and the applicant, including the common bonds that drew them together, was relevant to whether the complainant might tell her mother about the offending. It satisfied the test of relevance.

It was also open to the judge to weigh the fact that there was no objection to SC’s cannabis use and that it would be artificial to permit that evidence to be adduced but to exclude evidence of the participation of the applicant in the consumption of cannabis with SC. In that context, the judge’s reference to what was going on in the respective households is important. As the judge noted in her ruling, the complainant’s account of what happened was ‘very much the subject of challenge’ by the applicant. In assessing the complainant’s account, details mattered. In this case, as in many like it, the cross-examination was, in certain aspects, undertaken at a level of fine detail including, for example, as to timing, the layout of the respective houses, and the presence of a projector. In this context, to allow the complainant to give evidence about her mother’s alcohol and cannabis use, but not that of the applicant would give an incomplete picture of the context in which the offending was said to have occurred.

Finally, we see no error in the judge’s assessment of prejudice. That is, there was very little prejudice to the applicant in evidence that he consumed cannabis with SC. Further, it would reasonably be expected that any prejudice that might exist could be counterbalanced by appropriate directions from the judge.

In our opinion, there was no error in the ruling given by the judge.

Although not the basis for the judge’s ruling, we would add that in our view, the evidence was relevant on a broader basis. The number of visits paid to the houses by the protagonists, and their frequency and duration, were important issues in the trial. They went to the applicant’s opportunity to offend. Indeed, the applicant’s case, as put to the complainant in cross-examination, was that the complainant only stayed for short amounts of time at Boronia on the occasions she went there and that the applicant went to Endeavour Hills twice for short periods of time and either did not go into the house or did so only on one occasion to check on a puppy. In our view, the nature of the relationship between the applicant and SC, their reasons for spending time together and what they did together were relevant. The consumption of alcohol and cannabis was, according to the complainant’s account, a central part of that relationship. Further, intoxication, whether by cannabis or alcohol, was relevant in considering the likely duration of the complainant’s family visits at Boronia, a question on which there were starkly different accounts. The offences occurred in a domestic setting. In our opinion, it would be entirely artificial to exclude cannabis use by both SC and the applicant, or the applicant only, from that setting just as it would have been artificial to exclude evidence about alcohol consumption.

Since writing the above, we have had the benefit of reading in draft the reasons of Priest JA. In his reasons, Priest JA makes the additional point that the prosecutor’s submission that the evidence of cannabis use was relevant to, in the sense of impairing, the memory of SC or the applicant infringed the credibility rule in s 102 of the Evidence Act 2008. Although reluctant to pass upon the topic in the absence of any submission from the parties, it is sufficient to say that, with respect, we do not agree. Section 102 prevents the adducing of credibility evidence unless one of the exceptions applies. For present purposes, evidence is credibility evidence if it ‘is relevant only because it affects the assessment of the credibility of the witness or person’ to whom it relates.[45] For the reasons we have given, the evidence of cannabis use by both the applicant and SC was relevant beyond its relevance to the capacity of the applicant and SC to remember things. Section 102 did not apply.
[45]Evidence Act2008 s 101A (emphasis added).

As observed, although hinted at by the judge’s reference to what was going on between the two households, these additional reasons were not expressed by the judge in her ruling. However, in our view, they are relevant to the additional question that this Court must consider, namely, whether the evidence of cannabis use resulted in a substantial miscarriage of justice. To that question we now turn.

In his oral submissions in this Court, the applicant’s counsel focused on the use by the prosecutor of the evidence of cannabis use which he submitted was unfair, compounded the inherently prejudicial effect of the evidence and resulted in a miscarriage of justice.

In her evidence, the complainant said that the applicant and her mother sat around drinking and smoking cannabis at Boronia and Endeavour Hills. SC gave evidence about smoking marijuana in the laundry at Endeavour Hills. SC also gave evidence that the applicant had stayed overnight at Endeavour Hills and that he drank and smoked cannabis there. It was put to SC in cross-examination that she was mistaken that the applicant stayed and that at the time she was drinking and smoking marijuana. The evident purpose of the cross-examination was to use the drinking and cannabis use to undermine the reliability of SC’s recollections.

In our view, to that point, at the close of the prosecution case, even though the complainant had not specifically tied her reason for not complaining to cannabis use, the evidence as to cannabis use was relevantly benign. The applicant was able to deploy SC’s cannabis use to his apparent advantage.

The applicant agreed in evidence-in-chief that he had smoked marijuana with SC but never around the children. He said that he smoked it in the laundry or at Boronia. The reference to smoking in the laundry is consistent with SC’s evidence that he smoked in the laundry at Endeavour Hills, however, the applicant said that he had not smoked after his accident in November 2003 and that he had only been to Endeavour Hills on two occasions. It may be recalled that the complainant’s family moved to Endeavour Hills in April 2004. Of course, the fact that the applicant adduced some evidence of cannabis use in evidence-in-chief, does not necessarily undermine his submission that the evidence was unfairly prejudicial. Faced with the ruling of the judge, the applicant had to address the evidence as best he could. Nevertheless, that evidence of cannabis use in evidence-in-chief was, in the scheme of this trial, relevantly innocuous.

Asked by the prosecutor why he had not seen SC since the middle of 2004, the applicant volunteered: ‘It was a social drug and drink friendship and I’d given all that up.’

It was immediately following that evidence that the exchange, set out at para 91 above, between the prosecutor and the applicant occurred in which the prosecutor, on four occasions, used the phrase ‘drugging and drinking’ in exchanges with the applicant. After the fourth occasion, objection was taken, and the judge suggested an alternative formulation.

The applicant’s evidence that he had not smoked marijuana at Endeavour Hills and had only been there twice was inconsistent with the evidence of both the complainant and SC. Plainly, the prosecutor was entitled to explore that topic with the applicant. Indeed, given the inconsistencies it would have been remarkable, and a matter of comment, if he had not. The number, duration and nature of the applicant’s visits to Endeavour Hills became a crucial contested issue in the trial. Evidence as to consumption of alcohol and cannabis at Endeavour Hills was, as we have said, relevant to that question.

Whether the applicant had consumed cannabis at Endeavour Hills was an important fact that could cast light on the duration and purpose of any visit. In other words, as the trial unfolded, whether the applicant had consumed alcohol and cannabis with SC was relevant to an issue beyond the reason why the complainant had not told her mother. It follows that the evidence of cannabis use by the applicant was admissible and, subject to how it was dealt with by the prosecutor, did not cause the trial to miscarry.

As noted above, despite the admonition of the judge to use a different turn of phrase, the prosecutor repeated the phrase ‘drugging and drinking’ in his closing address.

In our opinion, the use by the prosecutor of the phrase ‘drugging and drinking’ in the course of cross-examination was inappropriate. The word ‘drugging’ was unusual. The consumption of drugs, including illicit drugs, is not usually called ‘drugging’.

That said, it might equally be observed that the applicant’s description of his relationship with SC as ‘a social drug and drink friendship’ was inevitably going to attract attention from the prosecutor and invited examination. The turn of phrase adopted by the prosecutor inaccurately paraphrased the applicant’s evidence and was likely to draw attention to the activity and perhaps highlight the illicit nature of it. In the context, the repeated use of the phrase ‘drugging and drinking’ was glib and facetious. After objection was taken, the judge made it tolerably clear that the phrase should not be used by suggesting an alternative expression. It may be accepted that the judge’s admonition was not expressed as a ruling on the objection, but its import was clear and it should have been obeyed.

In the circumstances, therefore, it was regrettable that the prosecutor saw fit to reintroduce the phrase and repeat it a number of times in his closing address. To make matters worse, the prosecutor wrongly attributed the phrase to the applicant.

It is not easy to understand what the prosecutor meant when he said that by using the phrase ‘drugging and drinking’ the applicant had ‘let the cat out of the bag’. The idea that the applicant had let slip an important admission by admitting to drug-taking did not fairly reflect the evidence or its context. He readily admitted, and made no attempt to conceal, that he had smoked cannabis with SC. On one reading of the prosecution’s closing address, it is perhaps possible to discern an undercurrent of denigration of the applicant as a person who could not be trusted because he was a drug user and a person who was forced to admit to his drug-taking when confronted. Perhaps there was a hint of prejudice that the applicant, as a person engaged in ‘drugging and drinking’, might be the kind of person who committed the crimes with which he was charged.

The repeated use of the phrase ‘drugging and drinking’ suggests that the prosecutor thought that it might resonate with the jury. We have little hesitation in concluding that the prosecutor should not have framed his submission about the applicant’s drug use in the way that he did. It was in defiance of the intimation by the judge.

The obligations on a prosecutor in the carriage of a prosecution have been explained on many occasions.[46] Unsurprisingly, they include an obligation to address the jury in a scrupulously fair manner[47] and to avoid deliberately inflammatory, highly emotive, unfairly prejudicial rhetoric.[48] The use by a prosecutor of illegitimate, inflammatory and emotive language may give rise to an unfair trial.
[46]See, eg, Bugeja & Johnson v The Queen (2010) 30 VR 493; [2010] VSCA 321 and Ford (a pseudonym) v The Queen [2020] VSCA 162 (‘Ford’).
[47]Ford [2020] VSCA 162, [26] (Maxwell P, McLeish and T Forrest JJA).
[48]Woods (a pseudonym) v The Queen [2014] VSCA 233.

However, even if a call to prejudice was embedded in the inaccurate rhetoric of the prosecutor, in our view it did not produce a substantial miscarriage of justice.[49] In order to determine that no such substantial miscarriage of justice occurred, this Court must be satisfied that the prosecutor’s conduct in referring to the cannabis use as ‘drugging and drinking’ in cross-examination and in his closing address did not make a difference to the outcome of the trial.[50]
[49]Criminal Procedure Act 2009 s 276(1)(b); Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59.
[50]Baini v The Queen (2012) 246 CLR 469, 479–82 [26]–[33]; [2012] HCA 59 (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Andelman v The Queen (2013) 38 VR 659, 677–8 [85]; [2013] VSCA 25 (Maxwell P, Weinberg and Priest JJA).

First, although the smoking of cannabis is illegal and might be seen to be discreditable conduct, of itself it is unlikely to produce any strong emotive or prejudicial response in a jury. Further, the characterisation that the applicant was engaged in ‘drugging’ was clumsy but very unlikely to render the cannabis use any more objectionable.

Second, the directions by the judge not to misuse the evidence about drug-taking supplied any antidote that may have been required. The judge made it clear that the jury were not to use evidence of drug use in an impermissible way. In our view, there is no reason to think that the jury were not able to follow that clear direction. Further, this was a case in which there was a deal of evidence from the complainant of uncharged sexual offending by the applicant. It must be accepted, and there is no submission to the contrary, that the jury complied with the directions that were given as to the use of such evidence. The evidence as to cannabis use was far less central to the issues in the trial and, in our view, was very unlikely to have been misused by the jury. The contention that there is a risk that the jury misused the evidence of cannabis use because of the prosecutor’s description of it as ‘drugging’ cannot be accepted.

Third, in assessing whether there has been a substantial miscarriage of justice, it is very relevant that counsel for the applicant did not seek a discharge of the jury by reason of the comments by the prosecutor nor seek any redirection from the judge. Plainly, the use of the word ‘drugging’ was first used, and complaint was made, in the cross-examination of the applicant. Its repetition in closing address would have been striking. Yet defence counsel, imbued with the atmosphere of the trial, did not take any steps to address it. One may fairly infer that the failure to object to the repeated use of the language reflected the relative insignificance that the point assumed at trial.

In our opinion, the evidence of cannabis use was admissible. The way it was used by the prosecutor in his final address was regrettable but in the context of the trial it did not result in a substantial miscarriage of justice. The jury were focused on very grave offending, and were directed to reach their verdicts on the evidence. We are not persuaded that the jury were deflected from that task by how the prosecutor had framed the evidence in relation to cannabis use by the applicant. We are not persuaded that the result of the trial may have been different had the prosecutor not misused the evidence of cannabis use in the way that he did. The unnecessary and glib observations of the prosecutor were on a tangential issue, of very minor force and of little or no significance to the trial. The issue of cannabis use was dealt with fully and appropriately by the judge.

We would reject ground 1.

Ground 2

Under cover of ground 2, the applicant submits that the verdicts are unreasonable or cannot be supported having regard to the evidence.[51]
[51]Criminal Procedure Act2009 s 276(1)(a).

The applicant must establish that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt on the charges for which he was convicted. This Court is required to make its own independent assessment of the evidence. In discharging that task, it must give full weight to the jury’s advantage in seeing and hearing the witnesses, and to the principle that the jury was the body entrusted with the principal responsibility for determining the guilt or innocence of the accused person.

It is important to keep in mind the distinction between the role of the jury on a trial and this Court on appeal. As the High Court recently emphasised:

the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box.
…
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[52]

[52]Pell v The Queen (2020) 94 ALJR 394, 401–2 [37]–[39]; [2020] HCA 12 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ (citations omitted).

In seeking to make out the ground, the applicant identifies three aspects that, he submits, undermine the account of the complainant in a fundamental way. First, the evidence of the applicant’s injuries, which he says meant that he was severely restricted in his movement and prevented him from kneeling. Second, the evidence of both SC and the applicant that there had been no overnight stays at Boronia. Third, the inconsistent accounts given by the complainant to counsellors and at trial.

In oral submissions, the catalogue was expanded to include seven matters: the forensic disadvantage caused by delay; inconsistencies in the complainant’s various accounts; inconsistencies between the complainant’s evidence and other evidence at trial; other improbabilities associated with the alleged offending, particularly in relation to the layout of the bathroom; certain absence of support for the complainant’s account; denials; and the applicant’s injuries.

Consideration

After giving careful consideration to each of the seven matters relied on by the applicant and having closely attended to the evidence adduced at trial, we are satisfied that none of them, either alone or in combination, rendered the verdict unreasonable or not supported by the evidence.

The offending occurred in 2003 to 2004 and the trial was held about 15 years later in 2018. That passage of time inevitably gave rise to some forensic disadvantage. However, we are not persuaded that it was significant in this case. The applicant was able to identify who was living at Boronia, and was able to obtain medical evidence, which was the subject of agreed facts, as to his injuries. By reference to his second injury, he was able to say that from the date of the accident his relationship with SC had changed and that he only visited Endeavour Hills on two occasions. In other words, his defence went beyond a bare denial.

Further, the applicant had the benefit of a direction from the judge as to forensic disadvantage caused by the delay. The judge instructed the jury that the delay had an impact on the ability of the applicant to defend himself. Specifically, the jury were told that by reason of the delay, the applicant lost the ability to explore the alleged circumstances in detail soon after the offences were said to have occurred, which may have uncovered evidence that would have thrown doubt upon the complainant’s allegations or confirmed the applicant’s denial of the charges. Further, the jury were told that the complainant’s inability to identify the occasions with any specificity prevented the applicant from providing an alibi in respect of a particular time or place.

The second and third matters rely on inconsistencies in the complainant’s accounts and the evidence of other witnesses. It may be accepted that the complainant’s account changed over time, including in important respects. For example, in her first report of the offending, she told the nurse at Stepping Stones that the offending had taken place over six months and there was no suggestion that it involved penile penetration. Indeed, it might be said that on each occasion the complainant reported the offending, she provided further detail.

The fact that that an account of sexual offending becomes more detailed over time does not necessarily render the account unreliable. Plainly, differences in accounts given by a complainant will be a matter to which the jury would be expected to pay close attention. Equally, there were differences in the accounts given by the complainant and SC. For example, the complainant said that she stayed overnight at Boronia, whereas her mother said they had not stayed overnight but had stayed until 8 or 9 o’clock in the evening on occasion. Again, that was a matter that the jury was capable of assessing in determining whether to accept the complainant’s account to the criminal standard.

Moreover, it is to be recalled that the offending at Boronia, which was the subject of a single incident, covering three charges, did not involve the complainant staying overnight at Boronia. It was an incident which was said to have occurred during the day when the complainant’s mother had left the house for a period of time. It was not necessary in those circumstances for the jury to be satisfied beyond reasonable doubt that the complainant had, on other occasions, stayed overnight at Boronia. The differing accounts were undoubtedly matters which were capable of going to the reliability and credibility of the complainant. However, the jury was well placed to assess those matters. The discrepancies identified by the applicant were not of such potency as to render the verdicts unsafe.

The fourth matter was concerned with whether the offending that was alleged to have occurred in the bathroom was, by reason of the configuration of that room, highly improbable. Specifically, it was said that given the height of the bench in the bathroom and the height of the applicant, the alleged offending was mechanically improbable. In our opinion, the evidence came nowhere near establishing that the offending in the bathroom could not have occurred in the way alleged by the complainant. In any event, it was for the jury to consider the evidence and, properly instructed as to the law, assess whether the offending had occurred as alleged. It was well open to the jury to accept the complainant’s account of the offending in the bathroom.

The absence of any external support for the complainant’s account can be dealt with briefly. There was no obligation on the jury to identify evidence that corroborated or supported the complainant’s account before accepting her evidence. The absence of such corroboration does not mean that the verdicts are unreliable.

The applicant gave evidence and denied on oath committing any of the offences. It was necessary for the jury to consider that evidence in assessing whether the charges had been proved by the prosecution beyond reasonable doubt. The denials, alone or in combination with the other matters relied on, did not render the verdict unsafe.

Finally, the applicant relies on the evidence as to his injuries. For similar reasons given in relation to the probability of the offending having occurred in the bathroom, having regard to the layout of that room, the jury were required to consider the applicant’s evidence that his injuries prevented him from kneeling and practically impeded him from engaging in intercourse with the complainant in the way she had alleged. There was also evidence that at about this time the applicant was working as a delivery driver and, as a hobby, was working on restoring or repairing motor vehicles. Those matters were quintessentially for the jury to assess.

Having reviewed the totality of the evidence, we are not persuaded that the verdicts were unreasonable or were not supported by the evidence. It was well open to the jury to be satisfied beyond reasonable doubt as to the applicant’s guilt.

We would reject ground 2.

Conclusion

The application for leave to appeal against conviction should be refused.

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[2021] VSCA 89

8 April 2021