R v DF
[2010] ACTSC 31
•15 April 2010
THE QUEEN v DF [2010] ACTSC 31 (15 April 2010)
CRIMINAL LAW – trial by judge alone – offence of act of indecency upon person above the age of 10 but under the age of 16 – accused found guilty.
CRIMINAL LAW – trial by judge alone – offence of act of indecency without consent – reasonable doubt whether offence committed within dates specified in indictment – accused found not guilty.
CRIMINAL LAW – two charges depending on uncorroborated evidence of complainant – finding that elements of first charge made out beyond reasonable doubt – finding that second charge cannot be made out as to dates specified in indictment – application by counsel to review finding on first count having regard to finding on second count – finding on second count relates to reliability of evidence about dates, not complainant’s veracity or honesty – no requirement to find reasonable doubt about first charge as a result of doubt about second charge.
EVIDENCE – requirement that complainant in sexual offence proceeding not be identified – accused’s granddaughter a complainant in another sexual offence proceeding – granddaughter’s complaint relevant to defence in this proceeding – difficulty of dealing with defence arguments properly without indirectly identifying granddaughter – names of all family members, including accused, suppressed – Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 40.
EVIDENCE – complainant’s evidence of earlier complaints to mother admitted – evidence remained admissible despite exclusion of mother’s evidence of complaint – Evidence Act 1995 (Cth), s 108(3).
EVIDENCE – prior consistent statements by complainant – defence case included claims that complainant’s evidence had been fabricated or reconstructed or was the result of suggestion – evidence of earlier complaints by complainant admitted – Evidence Act 1995 (Cth), s 108(3).
EVIDENCE – operation of Evidence Act 1995 (Cth) in judge-alone trials in ACT – requirement that judge take into account a warning that a Territory law would require to be given to a jury – whether “warning” includes directions or comments – effect of Evidence Act provisions expressed to apply where there is a jury – meaning of “Territory law” – Evidence Act not a “Territory law” under Legislation Act 2001 (ACT) – provisions of Evidence Act expressed to apply in jury trials may not be applicable to judge-alone trials in ACT.
EVIDENCE – possible unreliability of evidence of complainant and other prosecution witnesses – complainant’s cousin’s role in instigation of complaints – whether complaints reflected “false” or “recovered” memory – complainant’s faulty recall of incidental details – implausibility of allegation about second incident – “improvement” in evidence of prosecution witnesses.
EVIDENCE – possible unreliability of complainant’s evidence – whether complainant or another prosecution witness had a motive to lie – whether another witness’s motive to lie could affect reliability of complainant’s evidence – whether complainant’s inherently central role in the possible conviction of the accused renders her evidence unreliable.
EVIDENCE – complainant encouraged to make formal complaints by cousin – no necessary implications for truth of complaints – complainant’s evidence not unreliable by reason only of complaints having been encouraged.
EVIDENCE – allegations of “false” or “recovered” memories – no evidence that complainant’s memories had ever been lost – no evidence suggesting creating or implanting of memories – mistakes about matters of detail are not the same as, or evidence of, “false” or “recovered” memory.
EVIDENCE – “improvement” in evidence between committal and trial does not render evidence necessarily unreliable – implausibility of matters in evidence not a reason for finding evidence unreliable – allegation of acts of indecency in presence of others not necessarily implausible.
EVIDENCE – character evidence – weight to be given to character evidence from witnesses who decline to hear details of allegations.
EVIDENCE – evidence taken by video link from Victoria on voir dire – direction under Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 20 only available in respect of a participating State – participating States are those in which provisions are in force in terms substantially corresponding to Part 3 of that Act – Victorian legislation is not corresponding legislation – Victoria is not a participating State – no order available under s 20 – Practice Direction not a sufficient basis for admitting evidence in criminal trial, even with consent of other party – evidence excluded.
EVIDENCE – delay in making complaints – Longman warning – Evidence Act 1995 (Cth), s 165B – requirement under s 165B for defence to identify significant forensic disadvantage claimed to result from delay – significance of delay in absence of sworn denial by accused – significance of delay having regard to extensive cross-examination of complainant about details of allegations.
Evidence Act 1995 (Cth), ss 108, 164, 4, 165, 165B, 192
Crimes Act 1900 (ACT), ss 92K(2), 92J(1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40, 43, 46, 69, 71, 62, 66, 20, 16
Supreme Court Act 1933 (ACT), s 68C
Legislation Act 2001 (ACT), ss 7, 8, 13, 17
Criminal Code 2002 (ACT), s 28
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), Parts 1A, 2, 3
Evidence Act 1929 (SA), Part 6C
Evidence Act 1906 (WA), ss 120-132
Evidence Act 1977 (Qld), Division 4 of Part 3A
Evidence (Audio and Audio Visual Links) Act 1999 (Tas), Parts 2 and 3
Evidence Act 1958 (Vic), since 1 January 2010 renamed the Evidence (Miscellaneous Provisions) Act 1958, Parts I, IIA, s 9M, 9N, 9O, 9P
Court Procedures Rules 2006 (ACT), r 6800(3)
Practice Direction No. 1 of 2002 (ACT Supreme Court)
Azzopardi v The Queen (2001) 205 CLR 50
Crampton v The Queen (2000) 206 CLR 161
Director of Public Prosecutions v Kilbourne [1973] AC 729
E (1997) 96 A Crim R 489
Fleming v The Queen (1998) 197 CLR 250
Fortbacon Pty Ltd v Dickie and Anor (1995) 127 FLR 69
Longman v The Queen (1989) 168 CLR 79
Munn v The Queen [2006] NSWCCA 61
R v DJT [1998] 4 VR 784
R v Maan [2009] ACTSC 128
R vMarkuleski (2001) 52 NSWLR 82
R v OL [2004] QCA 439
R v Stewart (2001) 52 NSWLR 301
Winter v Ministry of Transport [1972] NZLR 539
Uniform Evidence Law, Odgers, Thomson Reuters: 8th ed, 2009
Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, ALRC 102 (2005)
No. SCC 14 of 2008
Judge: Penfold J
Supreme Court of the ACT
Date: 15 April 2010
IN THE SUPREME COURT OF THE )
) No. SCC 14 of 2008
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
DF
ORDER
Judge: Penfold J
Date: 15 April 2010
Place: Canberra
THE COURT FINDS THAT:
On the charge that between 1 January 1987 and 31 January 1987 at Canberra in the Australian Capital Territory [the accused] committed an act of indecency upon [the complainant], the [complainant] then being a person above the age of 10 years but below the age of 16 years, to wit, 15 years of age—the accused is guilty.
On the charge that between 21 March 1987 and 30 March 1987, at Canberra aforesaid [the accused] committed an act of indecency upon [the complainant], without the consent of the [complainant], and knowing that she had not consented or reckless as to whether she had consented—the accused is not guilty.
Introduction
The accused was charged with two counts of committing an act of indecency upon his niece, once shortly before her 16th birthday and once shortly afterwards. The offences were said to have been committed on two occasions in 1987 when the complainant was at her uncle’s house in Canberra with other family members. On each occasion, the complainant said, the accused had touched her breast and put his tongue in her mouth while kissing her. On the first occasion, she said, he also tried to put his hand down her shorts.
The complainant gave evidence of the touching, and this was supported by some evidence of complaints made by her within the few years after the incidents. The accused did not give evidence, but various members of his family gave character evidence, and evidence directed to raising doubts about whether the offences could have taken place as charged, especially but not solely about whether they could have taken place during the periods specified in the indictment.
The judgment is organised as follows:
Paragraphs [4] to[7]
Arraignment, and possible duplicity of second charge.
Paragraphs [8] to [10]
Identification of the complainant and a complainant in another sexual offence proceeding against the accused.
Paragraphs [11] to [16]
The trial, including general procedures for a trial by judge-alone, and a no-case submission.
Paragraphs [17] to [24]
General comments about the evidence.
Paragraphs [25] to [40]
General comments about the witnesses.
Paragraphs [41] to [85]
Evidence about the first count.
Paragraphs [86] to [114]
Evidence about the second count.
Paragraphs [115] to [132]
Directions—general, and those required because of the nature of these proceedings.
Paragraphs [133] to [141]
Application of certain provisions of Evidence Act 1995 (Cth) in judge-alone trials in the ACT.
Paragraphs [143] to [234]
The reliability of the prosecution evidence, including whether the complaints arose from “recovered” or “false” memories.
Paragraphs [235] to [267]
Other evidentiary issues, including the significance of character evidence, the exclusion of tendency evidence, and the significance of delays in the making of complaints.
Paragraphs [268] to [302]
Exclusion of evidence of the complainant’s mother given by telephone from Victoria.
Paragraphs [303]
Accused’s medical condition.
Paragraphs [304] to [307]
Provisional conclusion about the first count.
Paragraphs [308] to [311]
Conclusion about the second count.
Paragraphs [312] to [317]
The impact of the “not guilty” verdict on the provisional guilty verdict.
Arraignment
The accused was arraigned before me on two counts, as follows:
Count 1: That between 1 January 1987 and 31 January 1987 at Canberra in the Australian Capital Territory [the accused] committed an act of indecency upon [the complainant], the [complainant] then being a person above the age of 10 years but below the age of 16 years, to wit, 15 years of age.
Count 2: And further that between 21 March 1987 and 30 March 1987, at Canberra aforesaid [the accused] committed an act of indecency upon [the complainant], without the consent of the [complainant], and knowing that she had not consented or reckless as to whether she had consented.
The offences charged were created by ss 92K(2) and 92J(1) respectively of the Crimes Act 1900 (ACT) (the Crimes Act). Those provisions, as in force at the relevant dates in 1987, are set out in Appendix A to this judgment.
The accused pleaded not guilty to both charges.
Is the second charge duplicitous?
The second count on the indictment, being that the specified act of indecency involved the accused “knowing that she had not consented or reckless as to whether she had consented” appears to be duplicitous having regard to the form of the offence provision at the time of the alleged offence (see [5] above), in that it should allege knowledge or recklessness but not both (see, for instance, R v Maan [2009] ACTSC 128). No objection was taken on behalf of the accused and in the event this defect, which could probably have been corrected at an appropriate point in the trial, is not relevant to the disposition of that charge because of my finding that on the evidence provided, I could not be satisfied that the incident alleged took place during the period specified in the indictment.
Information identifying the complainant
This proceeding is a sexual offence proceeding for the purposes of Division 4.2 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the ACT Miscellaneous Provisions Act). Section 40 of that Act makes it a strict liability offence in relation to such a proceeding to publish the name of the complainant, protected identity information about the complainant, or a reference or allusion that discloses the complainant’s identity or from which the complainant’s identity might reasonably be inferred.
The complainant is a niece of the accused. It would be fairly easy for a person who knew the name of the accused, and of other family members who gave evidence at the trial or were referred to in evidence, to work out the identity of the complainant. As well, evidence in this trial referred to sexual offence allegations against the accused made by one of his granddaughters, and the significance of those allegations for evidence given by the accused’s daughter who is the mother of that granddaughter and whose position in the family is significant to some of the issues raised in the trial. Those allegations also led to the institution of proceedings against the accused in this Court, so that the granddaughter is also a complainant in a sexual offence proceeding for the purposes of s 40.
I have not been able to work out how to disguise only the identity of the complainant in this case and of the complainant in the other proceedings while still canvassing properly the issues raised in this case about the instigation of the complainant’s complaints. In these reasons, therefore, as well as not referring to the complainant by name, I do not refer to the names of the accused, or to the names of other family members, because the publication of those names might identify, or enable the identification of, the complainant, or the accused’s granddaughter who was the complainant in another sexual offence proceeding. At the end of this judgment is an appendix identifying the participants referred to only by initials in the judgment (Appendix B), which I order not to be published but to be made available to the prosecution and the accused only, to be used by them if required for the purposes of these and any subsequent proceedings.
The trial—procedural matters and no-case submission
Election for trial by judge alone
The accused elected to be tried by judge alone.
Procedures for trial
Section 68C of the Supreme Court Act 1933 (ACT), which is set out in Appendix A to this judgment, specifies the procedures to be followed for a trial by judge alone. In summary:
(a) the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b) the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v The Queen (1998) 197 CLR 250); and
(c) the judge must take into account any warnings that would, under a Territory law, have had to be given to a jury in the case.
In accordance with that section, I have given myself a number of general or specific directions and warnings. These are further discussed at [115] to [132] and [143] to [267].
No-case submission
At the close of the prosecution case counsel for the defence made a no-case submission. The submission was, in effect, that even if I accepted the complainant’s evidence as entirely honest, it would not be a safe basis on which to find either of the charges proved beyond reasonable doubt. This was because, counsel argued, the complainant’s memories were what are often called “recovered” memories, and as such they were not reliable (as distinct from honestly held).
I rejected counsel’s application. This was because at that point I had heard evidence from the complainant which, if accepted, would be sufficient to justify a finding of guilt on the charges, no evidence conflicting that evidence in relevant respects, and nothing which raised substantive concerns about the reliability of the complainant’s evidence. In particular, I was not convinced at that point that the case involved “recovered” memories.
The question of “recovered” memory was again raised, in the defence’s closing submissions, and is dealt with at [191] to [217] below.
The evidence—general
Introduction
Evidence for the prosecution was given by the complainant, by one of her cousins who is one of the accused’s twin daughters, and by a longstanding friend of the complainant. The complainant’s mother spoke to the court by telephone from country Victoria, but I have declined to receive her comments as evidence, for reasons set out at [268] to [302] below.
On behalf of the accused, evidence was given by one of his two sons and three of his four daughters (as mentioned, the other daughter gave evidence for the prosecution), as well as a son-in-law currently separated from one of the daughters who gave evidence for the defence. The accused’s other son was available to give evidence on behalf of the accused, and attended court one day during the trial, but defence counsel explained that he would not be called to give evidence because he had nothing to add to the evidence of other defence witnesses.
Evidence was also given by a police officer involved in investigating the complainant’s complaints, Detective Senior Constable Tara Ducker.
The evidence given by the various witnesses fell into several different categories.
Some evidence (the primary evidence) related directly to whether events had taken place as alleged by the prosecution, including:
(a) direct evidence from the complainant about the two incidents the subject of the charges;
(b) evidence of complaints made by the complainant after the evidence; and
(c) evidence intended to establish that the incidents charged could not, or were unlikely to, have taken place during the periods specified in the indictment.
This evidence is set out at [41] to [85] (first count) and [86] to [114] (second count).
A large amount of other evidence was adduced, mainly relevant to the reliability of the primary evidence, or more generally to whether the events alleged were likely to have taken place.
The secondary evidence is discussed in the context of various directions sought in the trial.
Comments about witnesses
Witnesses for the prosecution
The complainant
The complainant, whom I shall refer to as C, was a convincing witness. She gave her evidence carefully and calmly and provided clear and apparently unembroidered descriptions of the two incidents.
She was not shaken in cross-examination on any important aspect of her evidence, but she did not hesitate to admit that there were details about the broader circumstances that she could not remember or was not sure about. Counsel for the defence challenged two aspects of her evidence by reference to answers given by her at the committal hearing; these challenges are dealt with at [94], [95] and [304] below, and in my view did not undermine her credibility.
C gave no hint through her demeanour or the content of her evidence that her complaint was motivated by anything other than a belief that the accused should be held to account for what she said he had done to her. She did not seem to be taking any pleasure in her role in the trial, merely doing a difficult job which she felt needed to be done. There was no suggestion of antipathy or vindictiveness towards the accused or any member of his family; rather, she demonstrated a strongly-held conviction about the importance of family bonds (see, for instance, her evidence about her grandmother’s funeral at [205] below), and implied that the possible effect on her grandmother (the accused’s mother) was one of the reasons why it had taken her so long to make a complaint (see [199] below).
Bobbie Husking
Bobbie Husking, C’s friend since 1986, was not as convincing a witness as C. I accept her evidence that C had told her in 1987 about incidents involving C’s uncle, the accused. Despite the implication of some of C’s cross-examination by defence counsel, I do not find it unlikely that a 15- or 16-year-old girl might have confided embarrassing and disturbing information to another teenage girl she had met only recently, especially if she felt unable to discuss that information with family members.
Ms Husking did, however, give the impression of a person who was keen to ensure that the details of her evidence were helpful to the prosecution. This was particularly noticeable when she took more than 30 seconds to answer a relatively straight-forward but potentially important question:
So you agree that your statement’s correct, that it was probably sometime in about late 1987 when the disclosure took place?‑‑‑I guess, based on what I’m feeling and what I have in my head at the moment, yes this is probably a more accurate timeframe.
Defence counsel submitted that Ms Husking was during that time trying to work out what would be the most helpful answer for the prosecution; whether or not this was the case, her approach did not engender any particular confidence in the accuracy of the evidence concerned.
Defence counsel, in challenging the reliability of Ms Husking’s evidence, pointed to the following exchange in cross-examination:
So there’s been no discussion whatsoever about what these charges relate to or what events?---They relate to her uncle being inappropriate, is what they relate to. The specifics and the legalities behind that, no, we haven’t gone into. As you could appreciate, this is a very traumatic experience and it’s my role to support my friend, not to go through the legalities of the – and aspects of it.
This was further pursued later in cross-examination:
Because you are here to support your friend and you don’t care about the legalities?---No, I never said I do not care about the legalities.
You’re not concerned with the legalities?---It’s not my responsibility.
Well, it’s your responsibility to tell the truth?---That is very true---
So---?---and I’m not questioning that.
Defence counsel submitted that Ms Husking was “quite upfront about the fact that she was there, not to worry about the legal niceties, but to do everything to support her friend”. However, it seems to me that a layperson who makes a comment of this kind dismissing “the legalities” is at least as likely to mean that she is not concerned with legal technicalities as that she is not concerned with telling the truth. Nor does it seem to me that counsel’s reference to Ms Husking being there “to do everything to support her friend” is a fair paraphrase of Ms Husking’s remark that it was her role “to support [her] friend” in a traumatic experience. Ms Husking agreed that she was obliged to tell the truth.
As mentioned above, I was satisfied that complaints had been made to Ms Husking during 1987 (and therefore that C had not simply made up her complaints much more recently). It did not seem to me that Ms Husking’s inadequacies as a witness detracted from the credibility of C’s own evidence, but I did not need to, and did not, place any reliance on the details of Ms Husking’s evidence in reaching my conclusions about the specific timing of the relevant incidents.
The accused’s daughter NJ
The accused’s daughter NJ gave evidence for the prosecution. She had no direct evidence to offer about the alleged incidents the subject of the charges (although she gave supportive evidence about the family function associated with the second charge). Her evidence was mainly relevant to how C had come to make her complaints to police.
It emerged clearly from the evidence of NJ and her siblings that NJ has for some time been estranged from her family of origin; conflicting evidence was given about who began or maintained this estrangement, but it seems to have developed as a result of several allegations of sexual assaults by the accused on young female family members, including NJ’s daughter S (evidence about those allegations was admissible for reasons set out in [150] below). At times while giving evidence, NJ was noticeably aggressive or defensive. The significance of NJ’s evidence is canvassed at more length in the context of the reliability of the prosecution evidence more generally (see [143] to [234] below).
Witnesses for the defence
The accused, as was his right, did not give evidence.
Accused’s family members
The evidence given by defence witnesses related largely to matters incidental to the complainant’s narrative. With the exception of some evidence given by the accused’s daughter DB (see [40] below), no evidence was given directly contradicting the central features of C’s evidence, although family members who were mentioned in C’s evidence told the court that they could not recall incidents she had referred to. As well, evidence was given about the family’s usual routines around the time of the alleged offences, much of which, if accepted, would make certain elements of C’s story less rather than more likely. In particular, much evidence was directed at suggesting that it was unlikely that either offence had been committed during the periods specified in the indictment.
Most of the defence witnesses appeared to be making a genuine attempt to give honest evidence. As mentioned, much of their evidence related to the family’s usual practices concerning relevant issues, and they admitted to uncertainties and failures of memory about specific events.
The accused’s daughter DB
The accused’s youngest daughter DB, however, took a different approach. Her memory appeared to work in an idiosyncratic way, allowing her to be vague about matters supporting parts of C’s story that other defence witnesses had conceded, but categorical about matters that were important to the defence but seemed likely not to have been very important to DB, or even within DB’s knowledge, at the time they occurred (see for instance DB’s evidence about wetsuits, discussed at [79] and [80] below). For these reasons, I have been sceptical about DB’s evidence where it conflicted with the evidence of those witnesses who appeared to be trying to give evidence only of what they could have known at the time and what they could genuinely remember when they gave evidence.
The first count
The offence covered in the first count is alleged to have taken place during January 1987, before the complainant turned 16 in February 1987.
The complainant’s evidence
In January 1987, the complainant’s family was living in Campbelltown in NSW. The complainant’s grandmother lived in Canberra, as did her son (the accused), and his family.
The complainant told the court that she and her sister CK, who was seven years her junior, travelled to Canberra to stay with their grandmother, whom she believed lived in the Canberra suburb of O’Connor at that time. The complainant thought that she and her sister had travelled to Canberra by bus, but she could not remember whether her grandmother accompanied them on the trip. She said that the trip had taken place in January 1987, and that she and her sister had returned home to Campbelltown before the end of the school holidays because her younger sister had to go back to school. She wasn’t sure, but thought the visit could have lasted for up to two weeks. The complainant was not sure when school had re-opened that year but she believed it was around the end of January. The complainant herself did not return to school for the 1987 school year, but her father had told her that unless she had found a job by her 16th birthday in late February, she would have to go back to school.
The complainant said that she and her sister CK had visited the home of her uncle, the accused, during the January 1987 stay in Canberra. The complainant said that the visit was during the day, although she could not remember what time of the day she arrived at the accused’s home. She had travelled there by car, and she thought that one of her cousins, the accused’s son TJ, had collected her and her sister from their grandmother’s home to take them to the accused’s home.
At the accused’s home, the complainant found the accused and one of his daughters, DB. At some point, the complainant’s sister CK left the house with TJ, in a truck; the complainant thought “they were going to get plants or something”. She was not sure whether what she referred to as “the truck” was the same vehicle in which she had travelled to the accused’s home.
The complainant said that at the accused’s home she was “sticking with DB, my cousin. I thought I’d be okay if I stayed with her”. C said that she remembered going with DB to the rumpus room where DB sorted through wetsuits that were in the rumpus room. She said that DB:
… was going out the back to the rumpus room and I was trying to keep up with her, she was in a hurry to go to the rumpus room and we had to walk through – it was a – a laundry to go out the back door and there was a toilet – a toilet off the laundry.
The complainant went on:
… [DB] was walking quickly and I was trying to keep up and [DB], as she’d gone out the screen back door [the accused] came out of the toilet and he – he grabbed me with his – his left hand around – up my shirt ---
…
So coming back to you saying that your uncle grabbed you. Was [DB] – was she already outside the house?---Yes.
Now can you please describe what had happened when you say that he grabbed you?---He grabbed me around my ribs. His hands were – were big. Up my shirt and rubbing his thumb on my – my nipple and he put his other ---
All right. I’m sorry. So that we understand you properly, I take that you were facing where it’s written, three steps back, in that laundry? Do you see that floor plan?---Yes.
…
Which way were you facing?---As – I’d turned as – as [the accused] came out of the toilet, because I’d got a fright and I turned towards him.
…
All right. So what happened?---When he – he’d done that and he’d grabbed me and then he was trying to put his other hand, forcing down – down my shorts and - - -
…
Which hand did he use to grab you?---He had his left hand.
And where did he contact with his hand, which part of your body did he contact first?---He – he – he grabbed me. It was like around the – the ribs and his thumb was over my breast.
…
All right, can you please explain how he grabbed you and where he touched you?---He grabbed me with his left hand and put it up my shirt and he had hold of me around my ribs here and pulled me closer putting – forcing his hand down the front of my shorts and then he was trying kissing – trying to kiss me and trying to force his tongue into my mouth.
...
And you also mentioned that he kissed you?---Yes.
How did he kiss you?---He kissed me and he was forcing his tongue into my mouth.
Did he manage to insert his tongue in your mouth?---Partially.
What did you do?---I told him to stop or I’ll call [DB].
Did he stop?---Yes.
How long did this take – this whole incident?---About 30 seconds.
In cross-examination, C was not shaken on any significant aspect of her description of the accused’s actions:
And he grabbed you and put his hand under your shirt?‑‑‑Yes.
You described him and you being front to front? You were facing each other?‑‑‑Yes.
You’d turned to him and he had both his hands palm towards you?‑‑‑His right palm was towards me and the other one had come up my shirt.
So his right palm was pushing, if you like, against your stomach to get down the front of your pants?‑‑‑Yes.
And his left hand was, if you like, contacting with the front right hand side of your stomach, going upwards and getting under your training bra and on your right breast?‑‑‑His hand went up here and onto - onto my breast, yes.
And you said he also pulled you towards him to kiss you on the mouth and partially stuck his tongue into your mouth?‑‑‑Yes.
Okay. I suggest that the way you’ve described that, both his hands would be facing away from himself in a way that wouldn’t allow him to pull you towards him to do that?‑‑‑Yes, he did, because he had big hands and his hand was around my ribs and then using the other hand, the force of it coming back with my shorts pulled me towards him.
C confirmed that she had not consented to her uncle’s touching.
C was unsure about the exact duration of the incident, suggesting around 30 seconds but admitting that she couldn’t recall exactly how long and noting that “When something like that is happening to you, you’re not judging time”. She was not during her evidence invited to demonstrate how long she thought 30 seconds was.
Counsel invited me to find that 30 seconds would be an implausibly long time for an event of the kind described, and that may be correct, although there was no attempt to demonstrate a likely timing for the incident. However, the 30-seconds estimate was not central to C’s story, but a response to questioning, and she admitted that she did not have an exact memory. I cannot see that this affects the reliability of her other evidence—indeed that reliability would be more threatened by an indication that C had rehearsed the events as she intended to describe them, with a view to working out a more credible time to mention in her evidence.
C said that she had told her friend Bobbie Husking about the incident in 1987, and had told her mother about it, in general terms, around 1992.
Ms Husking gave evidence that in 1987, C had told her that, during a visit to Canberra, her uncle had “put his hand down her pants, down her top and also tried to put his tongue in her mouth”.
As already mentioned, evidence from C’s mother was excluded for reasons set out at [268] to [302] below.
The evidence of C’s complaints to her mother and to Ms Husking were admitted, by leave given under s 108(3) of the Evidence Act 1995 (Cth) (see [150] below). I note that C’s evidence of her conversation with her mother, having been rendered admissible by leave given under s 108(3), remained admissible despite the exclusion of her mother’s evidence about the matter (R v DJT [1998] 4 VR 784 at 794, Brooking JA).
C’s evidence was not directly contradicted by any other evidence.
Did the incident occur in the period specified in the indictment?
As well as establishing that the incident took place, the prosecution also needs to establish that it took place during the period specified in the indictment, namely from 1 January to 31 January 1987.
C said that the incident took place in January 1987. She dated her trip to Canberra by reference to her family’s return from an overseas posting late in 1985, followed by temporary residence in Sydney and then a move into a house in Campbelltown shortly before Christmas 1986. In locating the visit during the January school holidays, she referred also to her father’s requirement (mentioned in [43] above) that she return to school if she had not found a job by the time she turned 16 that February—a matter which might be expected to have been playing on her mind during that January. I note also that the clothes she said she was wearing during the incident (shorts and a t‑shirt) were consistent with the incident having happened during a school holiday in summer (although they do not rule out other holiday periods, even in Canberra). All relevant evidence (see [69] below) tends to exclude the possibility of the incident taking place between Christmas and 31 December 1986, and there was no evidence that the NSW school holidays at the beginning of 1987 extended into February.
In summary, the details provided by C about the circumstances of the visit to Canberra provide adequate grounds for placing the incident in 1987, in the school holidays and in summer—that is, as C said in evidence, in January 1987.
C had given evidence at the committal hearing that she had talked to her friend Bobbie Husking late in 1987; at the trial she said she now remembered telling Ms Husking about the January incident before March, and told defence counsel that in relation to this issue he “confused [her] very much last time”. Ms Husking had also given evidence at the committal hearing that C told her about the incident in late 1987, while at the trial she also said that C had mentioned this incident early in 1987, before the family’s second trip to Canberra around Easter that year.
Defence counsel pointed to what he called this “improvement” in the evidence given by both C and Ms Husking about the timing of C’s complaints (see [218] to [223] below for more on “improvements” in evidence). In cross-examination Ms Husking was at first sure that she had mentioned an early 1987 complaint at the committal. When shown the committal transcript, she said that she “believed that [she] had given the impression that [when C had first made a complaint to her, C] was returning for a family event”, but conceded that this was not recorded in the transcript.
The confusion in the evidence of both C and Ms Husking about when C first talked to Ms Husking about the accused could indicate, as suggested by defence counsel, a wish by C and Ms Husking to ensure that the charges in this case did not fail because of the prosecution’s inability to establish the dates of relevant events with sufficient particularity. If the complaint to Ms Husking was the only basis for placing the first incident in January 1987, then I could not have been satisfied beyond reasonable doubt about the timing, but as mentioned above there is adequate evidence from C, separate from the complaint evidence, about the timing of the incident and I have not needed to rely on Ms Husking’s evidence in reaching a finding about the timing of the first incident.
As already noted, the witnesses called by the defence gave evidence that sought to raise doubts about whether the incident as described by C could have taken place in January 1987.
Did the complainant visit the accused’s home in January 1987?
First, there was the question whether C had in fact visited the accused’s home in January 1987.
The accused’s wife A gave evidence that she could not remember C coming to her home in January 1987.
The accused’s daughter DB could not remember C ever visiting her home in Canberra without C’s parents, could not recall C’s family visiting during 1987, could not remember C being at the house during January 1987, and didn’t think it was possible that C had been there in 1987, because “I can’t recall her ever coming down when I was that old”.
None of that evidence is sufficient to raise a reasonable doubt about the basis on which C dates her visit to Canberra as January 1987. A’s presence at the house is not an element of C’s story, so A’s inability to recall an event she may not ever have been aware of does not cast any doubt on C’s evidence that the event happened. DB says that she doesn’t remember C’s visit and says that she doesn’t think it was possible that C had been at her house that year, but for reasons set out in [40] above I do not find her evidence on this matter sufficiently credible to raise a reasonable doubt about C’s evidence.
Could the accused have been at home as C described?
The next issue on which the defence sought to raise a doubt was whether the accused could have been at his home in Canberra at a time that was consistent with C’s story.
It was agreed by all relevant witnesses that the accused and his wife A usually went to their caravan at the NSW south coast shortly after Christmas and stayed at least until New Year. The evidence about what generally happened during the rest of the summer break, and in particular what happened in January 1987, was inconclusive.
NJ said that her parents spent a fair bit of time at the coast in summer, but were not there throughout January every year. She said that she and her then fiancée had spent up to two weeks at the caravan in January 1987 with her parents. NJ said that her parents did not always go to the coast together over Christmas and January, and as a parent herself now, she assumed that this was a method of “covering” school holidays (although this was not pursued at the trial, I assume that this evidence must have related to a period some time before 1987, since by 1987 the youngest child in the family was 17 and in full-time employment).
The accused’s wife A said that she could not deny that the accused had spent time at the house in Canberra during January 1987. She believed he had been working at the National Gallery of Australia five days a week; on occasions he was called in for overtime, but she could not remember anything about whether this had happened in January 1987. She did not think he would have been at home when she was not at home. In general, if she and the accused were working during January, they would visit the caravan roughly every second weekend, and always on the Australia Day long weekend. If they did not take leave in January, they would have worked all week and only been home on weekends. If she and the accused had not been at the coast throughout January 1987, they would definitely have been there on weekends.
The accused’s daughter JA said that the family’s practice was to go to the coast for about four weeks every Christmas, and every second weekend in summer. She could not recall being at the coast in January 1987, but said that it would have been unusual not to be there for at least a few days, especially during the period between Boxing Day and New Year. She had married and moved out of home in September 1986, and had probably not been to the coast for very long in January 1987, possibly only for the Christmas and New Year period.
The accused’s son TJ said that during summer his parents went to the coast every second weekend or more often and also spent a fair bit of time there over the Christmas break. As a general rule they were at the coast for most of January, although the time they spent at the coast in January varied from year to year. He guessed that they would have been there in January 1987.
The accused’s daughter DB said that she remembered that around New Year in 1987 she had been at the coast with her parents and all her siblings, with the possible exception of her older brother. She couldn’t remember how long she stayed at the coast but said she would have had at least two weeks off work. She said that her parents normally took the whole of January off work and were “normally always down there in the January”.
The accused’s daughter HM said that her parents would generally go to the coast “Christmas through January”, unless they were at work during January.
It is clear that the pattern was for the accused and A to spend some time in January at the coast. It is also clear that, from year to year, the amount of time spent there could range from as much as the whole of January to as little as two or three weekends, depending on the couple’s work commitments. None of the witnesses could assert that the accused and A had spent the whole of January 1987 at the coast. On the evidence, it remains a possibility that the accused was in Canberra for at least some part of January 1987.
It is likely that, if the accused was in Canberra, he would have been working five days a week and spending some weekends at the coast, but it also remains a possibility that he was at home in Canberra on at least one weekend during January. As well, in the absence of evidence that the accused’s employment involved working until quite late each evening, even working five days a week would not, in January in Canberra, rule out the accused being at home during daylight hours on a work day.
None of the evidence given about the family’s habits in January excludes the possibility of the accused ever having been at his home in Canberra during daylight hours in January 1987. Nor does that evidence make it so unlikely that he could have been there at a relevant time that I should have a reasonable doubt about C’s evidence placing him in the Canberra house once, for a brief period, during the day, in January 1987.
The complainant’s association of the alleged incident with the presence of wetsuits and waterskis in the rumpus room was also challenged by other evidence. Evidence given by A, JA, TJ, DB and HM was to the effect that wetsuits and waterskis were taken to the coast in the boat at the beginning of the summer season, kept in the caravan annex at the coast during summer, and returned to Canberra for the winter. Most of those witnesses gave evidence in terms of the normal practice and what they could recall. Only DB was prepared to assert that there would never have been wetsuits or waterskis in the rumpus room in January.
The evidence about the family’s habits in January does not exclude the possibility of the incident taking place as described during the period specified in the indictment. Accepting that the practice was for wetsuits and waterskis to be taken to the coast for the summer does not exclude the possibility that some wetsuits or waterskis that, for instance, were no longer in regular use were kept in Canberra rather than moved to the coast each summer to clutter up the caravan annex. Nor does it exclude the possibility that, as C says, DB needed to do something with wetsuits that had remained in Canberra. I find DB’s certainty that there would never have been any wetsuits or waterskis in the rumpus room in January unconvincing, for the reasons set out in [40] above, and noting that neither her mother nor any of her older siblings was prepared to rule out completely the possibility that there could have been wetsuits or waterskis in the rumpus room in January.
An alternative possibility is that C is in fact mistaken about what she saw in the rumpus room after the alleged incident, and that she has incorporated into her memory of walking into the rumpus room after the incident a separate memory of walking into the rumpus room at a time of year when wetsuits and waterskis were in fact stored there. The evidence about where the wetsuits and waterskis were kept might raise some doubt about whether that was what C actually saw when she walked into the rumpus room after the incident, but it is not sufficient to raise a reasonable doubt about the timing of the incident, having regard to the other aspects of her memory that she relies on to place the incident in January 1987 (see [58] above).
Could TJ and DB have been involved as C describes?
Finally, evidence was given relating to the possible involvement of TJ and DB in the events described by C.
The accused’s son TJ could not remember ever taking C’s sister CK anywhere by herself, and in particular could not remember taking her anywhere by herself in January 1987; however he said he could not rule this out. TJ gave evidence that in 1987 he drove a Laser TX3. At some point in 1987, TJ said, he had left home and moved to a Canberra hotel as the live-in night manager and bar manager. However, his mother A gave evidence that after TJ moved out, he had Sundays and Mondays off; on Sundays he would come home to do his washing and on Mondays he would return to iron it.
TJ’s evidence does not exclude the possibility that he had a role in taking the two girls C and CK to his father’s home and leaving C there while he took CK somewhere else. Nor does it exclude the possibility that for some reason he drove a vehicle (possibly a vehicle that was borrowed or belonged to another member of the family) that might have fitted C’s description of the vehicle as a “truck”, especially if, as she thought, he and CK had gone to get some plants. Even if he had in fact moved out of home as early as January 1987, his mother’s evidence about his visits to the family home in connection with doing his laundry are consistent with him being there on both a weekend day and a weekday each week.
DB gave evidence that she was still living at home in 1987. In January, she had been working in the Department of Finance for nearly 12 months. She did shift work, which involved alternate weeks on early shift (7.00 am to 3.00 pm) and late shift (3.00 pm to 11.00 pm). She gave evidence that in the weeks when she worked the late shift, she would sleep in late, and get up only around lunchtime to shower, dress and go to work. This evidence was indirectly supported by her sister NJ, who gave evidence for the prosecution. Nothing in this evidence, however, rules out the possibility that DB was at home and out of bed on a weekend day, or that she was at home and out of bed on a weekday after finishing an early shift. It does not raise any reasonable doubt in my mind about her availability to participate in events as described by C.
The second count
The offence covered in the second count is alleged to have taken place in March 1987, by which time the complainant was 16 years old.
The complainant’s evidence
C gave evidence that on this occasion she had travelled to Canberra with her parents and two sisters for a 21st birthday party for her uncle’s twin daughters, HM and NJ. Again, she said, she had stayed at her grandmother’s home in O’Connor.
C and her family attended the 21st birthday party at the accused’s home on Saturday night.
C gave evidence that the birthday party involved “all their family and friends and boyfriends and girlfriends”, being roughly 30 people, and it was held at the back of the house where a marquee had been set up. On the Sunday afternoon, C said, her family returned to Campbelltown, making a stop at the accused’s house on the way out of Canberra. C explained that, usually, there would be a “leftovers lunch” after a family function.
Defence counsel put to C that her cousin HM, one of the twins, had been quite sick the day after the 21st birthday party, that there had been no family gathering that day, and that she had mistakenly identified another family gathering as having happened after the 21st birthday party. C said that she had a specific recollection of the day after the 21st birthday party.
C said that at the end of the family gathering that she remembered:
What happened?‑‑‑We were getting ready to leave and [the accused] and [A] had gone to have a lie down and Mum had said to us girls had we gone and said goodbye to [the accused] and [A] yet. And so we went to the room to say goodbye - - -
Who’s we?‑‑‑My sisters, my two sisters and I. [CD] and [CK] and myself. [CD] and [CK] had gone in to say goodbye and I was last. [the accused] was lying on the floor beside the bed and Auntie [A] was on the bed and [the accused] was sort of lying on his side, on his right side, on the floor. And there was a bit of a gap between him and the bed so I’d stepped, put my foot in between - stepped over like his legs to say - I gave Auntie [A] a kiss goodbye and then I’d stepped back and I had to bend down to say goodbye to [the accused] and as I’d bent down he put his hand up my shirt and was trying - was kissing me goodbye and trying to put his tongue in my mouth again. And then he just said to me, “Love you. Behave.” and I said, “Love you too”, and left.
C was asked about the duration of the incident and the presence of her aunt:
And how long did this last?---30 seconds. No, quicker maybe.
And your auntie was on the bed?---Yes.
And was she facing where you were standing or was facing away from where you were standing?---She was facing where I was standing but when I pushed up from [the accused] I looked up and she was turning away.
In cross-examination, C was challenged about her claim that the accused and A had been “having a lie-down” in the bedroom while they had guests in the house. She said that this was not unusual “when it was family” if they were tired from a big night and all the preparation that had been done for it.
In cross-examination, C was asked about evidence she had given at the committal hearing:
And I asked you, “And did you have a bra on then?” And you said, “Yes.” Then I asked you, “Under your bra?” And you said, “Yes.” And I said, “The same as last time?” And you said, “Yes”. You were indicating then that he put his hand under your bra and onto your bare skin, weren’t you?---From what I recall I thought you asked if his skin had touched my bare skin and I’d said yes.
Counsel apparently intended to ask C whether she had been touched under her bra. C said that she believed she was being asked if the accused had touched her bare skin. At the committal, C was asked about the touching with the potentially ambiguous question, “The same as last time?” Given the ambiguity of the question, I do not consider that C’s confusion about her answer has any material effect on the credibility of her evidence.
C was also asked about the timing of the second incident:
On this occasion you said that that happened for about 30 seconds, although you said it mightn’t have been that long?‑‑‑It was very quick.
Very quick, well what’s very quick?‑‑‑Very quick. Within 30 seconds.
Do you know how long 30 seconds is?‑‑‑Yes, I do know how long 30 seconds is.
Okay, if you were to kiss your uncle goodbye for longer than five seconds that would be a long time in the context, wouldn’t it?‑‑‑I don’t know. It was quick.
I’m not trying to be difficult but you’ve suggested a time up to or something less than 30 seconds, are you saying more than 10 seconds?‑‑‑I can’t …(inaudible)… by seconds. It was quick. I didn’t stand there and count on my watch how many seconds it took.
Your best estimate is less than 30 seconds?‑‑‑Yes.
Again, the witness was not invited to demonstrate how long she believed 30 seconds was. Her reluctance to commit herself to a shorter maximum period seems to me more likely to reflect a recognition that she simply didn’t know how long the incident took than to indicate a fabricated story. For reasons already set out at [51] in relation to the first incident, I do not find that this uncertainty affected the credibility of the rest of C’s evidence.
The complainant confirmed that she had not consented to the touching described. She said that after this incident there had been no further inappropriate touching of her by her uncle.
Bobbie Husking gave evidence that C had told her about this incident in 1987. Although there was a challenge to Ms Husking’s evidence of when she had first heard about the January incident (see [60] above and [218] to [223] below), there was no specific challenge to her evidence that C had spoken to her in general terms about her uncle’s actions during that year and after C’s second visit to Canberra. Ms Husking’s version of C’s description of this incident was in very general terms and included the same elements as those of the earlier incident as described by C, whereas C’s own description of the second incident did not include the element of the accused trying to put his hand down her pants. Again, I accept the general evidence that C told Ms Husking in 1987 about her uncle’s behaviour, but I do not rely on Ms Husking’s evidence to establish the time of the second incident.
As for the first charge, defence witnesses sought to raise doubts about significant elements of C’s story.
Would the accused and A have been lying down in the bedroom?
Defence witnesses gave evidence to the effect that it was unlikely that, as described by C, the accused and his wife A would have been in the bedroom lying down while they had guests in the house.
The accused’s wife A gave evidence that the accused might occasionally lie on the lounge room floor after dinner in warmer weather. His daughter JA gave evidence that she had never seen her father lying on the floor in his bedroom and his daughter DB said that she had never known her father to lie on the floor of the bedroom next to the bed. The accused’s daughter NJ said that her father could fall asleep on the floor quite often; asked why he would sleep on the floor, she said “Come home and drink and fall asleep”. His son TJ said that his father lying down during the day would have been “far from common practice”.
As to whether A might have been lying down when C’s family was ready to leave her house, A herself said that she could not remember ever lying down during the day, and would certainly never have been lying down with guests in the house. The accused’s daughters JA, DB, and HM also said that their mother never lay down during the day; HM said that even with a very bad headache her mother would sit in her chair rather than lying down during the day. The accused’s son TJ said that he was doubtful that his mother would have been lying down during the middle of the day, but he conceded that he had started work in 1981 or 1982 and could not say that after that time she never lay down during the day.
On the basis of this evidence it seems unlikely that the accused and his wife would have retired to their bedroom during, or even at the closing stages of, a family function. The evidence suggests that a day-time rest would have been quite unusual at least for A, but it does not completely rule out the possibility that she and the accused might have been resting in the bedroom, on the day after a family function, when guests from the function called in to say goodbye before leaving Canberra to go home.
Did the incident occur in the period specified in the indictment?
Again, as well as establishing that the incident took place, the prosecution needs to establish that it took place during the period specified in the indictment, namely from Saturday 21 March to Monday 30 March 1987, which covered the last two Sundays in March 1987.
The defence sought to cast doubt on the possibility that the incident could have happened during the period specified in the indictment.
C’s evidence was that the incident in the accused’s bedroom took place on the day after her twin cousins’ 21st birthday party, which was held on one of the last two Saturdays in March 1987. Her reason for this belief is that the incident is associated in her mind with a cake in the shape of two hearts, which is an accurate description of the cake made for the 21st birthday party. Her recollections, which had been clarified as a result of seeing NJ’s photograph album containing photographs of the double heart cake (see [167] to [168] below), were supported by the evidence of her cousin NJ, who was one of the twins and a witness for the prosecution. NJ said that Uncle Rick from Darwin had attended the 21st birthday party. She said that there had been a family gathering at her parents’ home the day after her birthday party (the “recovery day or barbecue, leftovers day, whatever you want to call it”), and that she could remember C being at her home on that day.
Evidence was given by most of the defence witnesses challenging the evidence given by C and NJ that C and her family had attended a family gathering at the accused’s home on the day after the twins’ 21st birthday party.
The accused’s wife A confirmed that C and her family had attended the twins’ 21st birthday party. She said that the accused’s family normally had a barbecue at their home after a family wedding, but she could not recall ever having a second function after a 21st birthday party. She did not recall having visitors on the day after the twins’ 21st birthday party, and she did not recall C’s family coming to her home to say goodbye on that day. She agreed that Uncle Rick had come from Darwin to the birthday party, but this did not remind her of any family gathering the day after. A said that one of the twins, HM, had developed tonsillitis on the day after the birthday party, which had prevented HM going out on the Sunday night (despite a visit from a boyfriend or associate, Luigi, who had come to the house looking for her) and had also caused HM to take time off work. A said that there had been an 18th birthday party for DB earlier in March, and that she had also made a cake for that party, although she could not remember ever making a double heart cake for anyone apart from the twins. She did not say anything about whether C’s family had attended the 18th birthday party.
A also gave evidence that on the day after NJ’s wedding in May 1988, there had been a function at the accused’s home for her mother-in-law’s 70th birthday, and she could recall C and her family attending that function.
The accused’s daughter JA gave evidence that barbecues were held after family weddings, but that she could not recall any functions after 21st birthday parties and could not remember any family gathering after the twins’ 21st birthday party. JA remembered her own 21st birthday party, and remembered her brother’s girlfriend coming over on the day after her 21st birthday party to help with the cleaning up, but could not remember any gathering on that day.
The accused’s son TJ could not remember the twins’ 21st birthday party, nor any family get-together the next day. He remembered Uncle Rick possibly visiting the family home, but did not link that visit to any particular event or occasion.
The accused’s daughter DB said that her 18th birthday fell in mid-March 1987, and that she had had an 18th birthday party. She said that she could hardly remember the twins’ 21st birthday party, and could not remember C’s family attending that party. Nor could she recall any gathering the day after the 21st birthday party, and she said that such a function “wouldn’t be normal practice”.
The accused’s daughter HM, who is one of the twins, remembered the weekend of her 21st birthday party. In particular she remembered beginning to get sick on the Saturday night of the party, being very sick with tonsillitis by the next day, and spending the next week off work and in bed. Her memories of the weekend, she said, were particularly clear because she had bought three different outfits to wear on the three nights of the weekend, but was too sick to go out on the Sunday night. She also remembered Luigi, whom she was then seeing, coming to the house on Sunday evening to see where she was. HM said that although she had spent most of the Sunday in bed, she had not necessarily been asleep, and since her bedroom was at the front of the house, she would have been aware of any visitors to the house that day. She was sure there had been no family gathering at the house that Sunday; she thought that her brother and his girlfriend had been there, and DB and NJ would have been there, but she was not sure whether JA and her husband would have turned up. She said that the complainant’s family had not come to the house that day, because they would have spent the day with the grandmother. She was not asked how she would have known where the complainant’s family was if not at the accused’s home.
Directions, warnings and comments
For the purposes of this trial, I have had to give myself, or consider giving myself, a wide range of directions or warnings about how to approach the charges and the evidence adduced in order to establish or refute them (Supreme Court Act, s 68C(3)). I set out first the general directions appropriate in any criminal trial, and then turn to the substantial number of specific directions and warnings that are required, or have been sought, as a result of particular aspects of this trial or the evidence that has been offered.
General directions
I set out first the general directions I have given myself.
The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.
It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.
If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.
There is no need for both the verdicts to be the same. Each count must be considered separately in the light of the evidence that applies to it by asking, as to each count separately, “Am I satisfied beyond reasonable doubt by the evidence that the accused is guilty of this offence?” If the answer to the question is “yes”, I will find the accused guilty of that offence; if the answer is “no”, I will find the accused not guilty of that offence.
The accused’s failure to give evidence
The accused did not give evidence in his trial, and while he could have done so, I remind myself that there was no obligation on him to respond to the prosecution’s case by doing so.
I note that the prosecution bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged, and the accused bears no onus. The accused is presumed to be innocent until I have been satisfied beyond reasonable doubt by the prosecution that the accused is guilty, and he is entitled to say nothing and make the prosecution prove his guilt.
I direct myself, as a matter of law, that the accused’s silence in court cannot be used against him. The accused’s election not to give evidence constitutes no admission by the accused and no such inference must be drawn from that fact. Nor may I use such an election to fill gaps in the evidence tendered by the prosecution, or as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
As well, I must not speculate about what might have been said in evidence if the accused had himself given evidence.
Directions etc relating to sexual offence proceedings
There are a number of directions, warnings or other matters that are generally relevant in sexual offence proceedings.
Evidence given by audiovisual link
Subsection 43(1) of the ACT Miscellaneous Provisions Act requires that, unless the court otherwise orders, evidence given by the complainant in a sexual offence proceeding must be given by audiovisual link from a place other than the courtroom, if such an audiovisual link is available. There was no request that I order otherwise, and the evidence was accordingly given by C by audiovisual link from a place other than the courtroom.
Section 46 of the ACT Miscellaneous Provisions Act requires the jury to be warned that an inference adverse to an accused should not be drawn from the fact that a witness is giving evidence from another place, so I give myself an equivalent warning.
Warnings concerning evidence in sexual offence proceedings
Section 69 of the ACT Miscellaneous Provisions Act prohibits a judge, in a sexual offence proceeding, giving the jury “any warning or suggestion to the effect that the law regards complainants to be an unreliable class of witnesses”. Accordingly, I note that there is no basis on which I could consider that the evidence of a complainant in a sexual offence proceeding is inherently unreliable.
Section 71 of the Miscellaneous Provisions Act applies where, in a sexual offence proceeding, there is a suggestion that the complainant made no complaint about the alleged offences, or that there was a delay in making a complaint. In such a case, the judge must warn the jury that the absence of, or the delay in making, the complaint does not necessarily indicate that the allegation that the offence was committed is false, and must tell the jury that there may be good reasons why a victim of a sexual offence may not make, or may hesitate in making, a complaint about the offence. Defence counsel did suggest that complaints about the offences were only made long after the alleged incidents, and C agreed that she had not made the threatened complaint to her cousin DB about the first incident, but there was evidence of complaints made by C within the first year after the alleged incidents. However, I consider that it is appropriate in this case to give myself a warning along these lines, and I note the advice about reasons for the absence of a complaint or an early complaint.
I take account also of s 164 of the Evidence Act, which states that there is no requirement for evidence relied on (which would include evidence of a complainant) to be corroborated, and no need for any warning to be given to a jury that it is dangerous to act on uncorroborated evidence or for any direction to be given about the absence of corroboration.
Other directions etc
Finally, a number of directions, warnings and comments were required or sought because of aspects of the evidence emerging in this trial. They are discussed in the context of a review of the evidence concerned, but cover the following issues:
(a) the reliability of the evidence of particular witnesses (see [143] to [234] below);
(b) the character of the accused (see [236] to [241]);
(c) the significance of evidence about other allegations made against the accused (see [242] to [245]);
(d) the impact of the delay in the making of C’s formal complaints (see [250] to [267]).
Operation of Evidence Act 1995
There is no doubt that, by virtue of s 4 of that Act, the Commonwealth Evidence Act applies in proceedings in ACT courts.
However, in the course of preparing this judgment I have come to doubt the applicability of some provisions of that Act to judge-alone trials conducted under ss 68B and 68C of the Supreme Court Act. The provisions concerned are those expressed to apply where there is a jury (for instance, relevantly, ss 165 and 165B of the Evidence Act); those provisions would not apply of their own force in a trial by judge alone.
Under s 68C(3) of the Supreme Court Act, a judge in a trial by judge alone shall, “if a Territory law would otherwise require a warning to be given to a jury”, take that warning into account in considering her verdict.
The meaning of “Territory law” appears to be laid down by a series of interdependent definitions found in the Legislation Act 2001 (ACT). The Dictionary to that Act contains the following definitions:
territory law—see law, of the Territory.
law, of the Territory, means—
(a) an Act; or
(b) a subordinate law; or
(c) any other statutory instrument of a legislative nature; or
(d) the common law.
Sections 7, 8 (which defines “subordinate law”), 13 (which defines “statutory instrument”) and 17, as well as the definition of “Act” in the Dictionary, of the Legislation Act are set out in Appendix A to this judgment. Under those provisions, the Evidence Act 1995 is not an “Act” as defined in s 7, nor a “former Commonwealth enactment” referred to in s 17. It is not a subordinate law, and it is clearly not the common law.
If the definition of “statutory instrument” were taken literally, its reference to an instrument made under “power given otherwise by law” (s 13(1)(c)) could cover the Commonwealth Evidence Act (and all other Commonwealth legislation) on the basis that it was made under power found in the Commonwealth Constitution, but I consider that the definition, being of “law, of the Territory”, must be intended to be read as confined to instruments that have some kind of inherent connection with the Territory. While it is true that the Evidence Act does apply in the Territory, it does so as a result of express provisions included in that Act, not because it (along with all legislation of all other jurisdictions in Australia or more broadly) is literally covered by the unconfined reference in the definition of “law, of the Territory”, to “any other statutory instrument” which, in turn, is defined without any kind of territorial qualification.
If it is correct that “Territory law” when used in ACT legislation, and particularly in s 68C(3) of the Supreme Court Act, does not include the Evidence Act, then certain requirements of that Act expressed to apply only in jury trials are not specifically applicable to ACT judge-alone trials. To the extent that the relevant provisions of the Evidence Act reflect the common law, this is not a problem, because the common law is expressly covered in the definition of “law, of a Territory”. Nor is it necessarily a problem if the Evidence Act provisions do not go as far as the common law requires or if the judge considers that a direction or warning not prohibited by the Evidence Act is in any case necessary. Where the Evidence Act provisions differ from the common law (s 165B is the most significant example in this case), the position is more problematic.
That is, it could be argued that in a judge-alone trial, the judge is bound to direct herself according to the common law, whereas if the trial involved a jury the judge would be required to apply an appropriate provision of the Evidence Act and possibly give a rather different set of directions or warnings. The content of that common law might also be a matter for argument; on one approach, the Evidence Act might have “over-ruled” relevant authorities, leaving no useful common law on the topic; on the other hand, any such over-ruling may apply only where there is a jury, leaving the earlier authorities applying in judge-alone trials.
There is also a question about the meaning to be given to the word “warning” used in s 68C(3), in particular whether that word includes what are usually identified as directions or comments.
In the circumstances of this case, I have decided not to invite submissions on either of these matters from counsel before finalising my judgment. This is because I have satisfied myself that the resolution of my uncertainty about the Evidence Act would not change the outcome of the trial, and so it would be inappropriate to put the parties to further trouble and expense at this stage. Instead, I shall simply identify the points at which my approach to the evidence would differ depending whether the Evidence Act provisions apply or not, and indicate what approach I have taken.
Reliability of evidence
In the absence of any evidence directly contradicting C’s evidence, the defence challenged the reliability of that evidence on several different direct or indirect grounds that can be summarised as follows:
(a)That C’s complaints were instigated by NJ, or that C’s memories were “recovered” or “false” memories, possibly created by suggestions from NJ and that in either case, NJ’s actions may have been taken in pursuit of a “vendetta” she was conducting against her father.
(b)That C’s recollections were faulty, as demonstrated by her inability to recall incidental details about the circumstances of the two incidents, such as the exact floor plan of the house in which the two incidents were said to have taken place or the Canberra suburbs in which her grandmother lived at the time of the two alleged incidents.
(c)That the second incident as described by C was simply implausible.
(d)That C’s evidence and that of her friend Bobbie Husking and her cousin NJ, had “improved” since the committal hearing.
Those issues were specifically identified as matters justifying a direction about the unreliability of the evidence under s 165 of the Evidence Act. That section is set out in Appendix A. In summary, it requires a judge, on request from a party but subject to the existence of good reasons not to do so, to give a jury certain warnings about the possible unreliability of specified evidence and how the jury should deal with such evidence. Paragraphs 165(1)(a) to (g) set out specific kinds of evidence that may be unreliable, but that list is not exclusive; the provision applies generally to “evidence of a kind that may be unreliable”. As discussed at [133] to [141] above, this provision may not apply directly in judge-alone trials in the ACT. However, I consider it appropriate to address the requests from defence counsel in relation to the reliability of the evidence of the prosecution witnesses.
The complainant’s reports of the incidents, and “recovered” memories
As mentioned above, the defence case included claims that C’s complaints were made as a result of pressure, or suggestion, from her cousin NJ, and that her memories were “recovered” or “false” memories, possibly created by suggestion from NJ. For both these reasons, defence counsel says, C’s evidence is potentially unreliable and I should direct myself accordingly. Although the reasons for the making of the complaints and the possibility of false or recovered memories are conceptually separate issues, the claims arise out of the same series of events in the period leading up to the making of C’s formal complaints to the police, and are conveniently dealt with together.
Chronology of C’s complaints
The incidents giving rise to the charges are alleged to have happened, respectively, in January and March 1987. C’s formal complaints were finally made nearly 20 years later, after discussions with officers of the Australian Federal Police (AFP) in late 2006.
I find that the relevant events and circumstances leading up to the laying of the charges are, except where my findings are expressly qualified, as set out in the following chronology.
1987:
C mentioned the accused’s behaviour to Bobbie Husking on at least one occasion (I make no finding about when in 1987 that happened).
About 1992:
C mentioned the accused’s behaviour to her mother.
Before August 2006:
C had not been in contact with her cousin NJ for some years. NJ’s daughter S (the accused’s granddaughter) made allegations of sexual interference by the accused which led to charges being laid in NSW and the ACT. The ACT charges were dismissed.
August/September 2006:
PS, a cousin of both C and NJ, telephoned C about the allegations made by S. C asked PS to ask NJ to contact her. NJ telephoned C and told her about S’s allegations. In several telephone calls, C and NJ discussed what C said the accused had done to her and what S said he had done to her. C “had a bit of a breakdown” (counsel’s words, which C accepted).
6 September 2006:
NJ telephoned the AFP and provided information about C’s allegations. The file note admitted as Exhibit 2 did not identify the police officer who had taken the call and made the note, but two officers were mentioned in evidence as possible authors. There is no need to make a finding about who took the call from NJ.
18 September 2006:
Helen Judd, AFP Victim Liaison Officer, telephoned C and gave her contact details for a counsellor in Townsville (where C was then living). C thought that she might have made the first contact with the AFP, but admitted she was uncertain, and I find that AFP officers initiated the first contact between them and C, and did so as a result of NJ’s approach.
19 September 2006:
C saw a counsellor in Townsville. C could not recall whether she had arranged the counselling on her own initiative (she already knew where to find a counsellor in Townsville) or only as a result of the AFP telephone call. I make no finding on how or when that counselling was arranged.
26 October 2006:
C spoke to Tara Rourke, AFP, about her memory of the incidents.
November 2006:
C travelled to Canberra and attended a hearing of further charges against the accused in Queanbeyan Local Court (NSW) “to provide [S] with moral support”. The charges were dismissed. While in Canberra, C looked at NJ’s photo albums, where she saw a photograph of a cake in the shape of two hearts, taken at the 21st birthday party for NJ and HM in March 1987.
Early 2007:
C had further discussions with AFP officers.
20 June 2007:
Informations were sworn in relation to the two charges.
Early complaints
C admitted that she had not mentioned the first incident to DB at the time, even though she had joined DB within seconds of the conclusion of her encounter with the accused (DB’s father), explaining:
You didn’t – you didn’t say things like that in our family. You didn’t – you didn’t tell people. No one would’ve believed – no one would believe me.
The credibility of this explanation is indirectly supported by the evidence given by several of the accused’s adult children about their reactions (albeit 20 years later) to C’s allegations when they were finally made (see [237] below for that evidence, and [238] to [239] for my comments on it).
Evidence of C’s complaints made before 2006 was heard initially on a voir dire and then admitted by leave given under s 108(3) of the Evidence Act 1995. Defence counsel conceded that because the defence case would involve submissions that C’s evidence had been fabricated or re-constructed (deliberately or otherwise) or was the result of a suggestion from NJ, leave could be given, subject to s 192(2) of the Evidence Act, for the admission of evidence of prior consistent statements made by C. Noting this concession, the absence of submissions that s 192(2) provided any basis for refusing leave, and my own view that none of the matters mentioned in s 192(2) provided a basis for refusing the leave, I permitted evidence of such statements to be given.
Thus, when a recognised court takes evidence from a witness in the ACT, its powers under the laws of its own jurisdiction, including to enforce its decision, and in particular to administer an effective oath, are supplemented by ACT legislation filling in any gaps in those powers that arise from the fact that witnesses or counsel are physically outside the State or Territory of the recognised court.
This kind of supplementation is equally necessary when an ACT court takes evidence from outside the ACT.
Participating States, by definition, have legislation substantially corresponding to Part 3, which includes Division 3.3. This means that an ACT court can, in taking evidence from a participating State under Division 3.2, rely on the law of the participating State to ensure that powers are supplemented (in the same way that Division 3.3 supplements the powers of a recognised court taking evidence given in the ACT), so that the evidence taken by the ACT court from outside the ACT has effectively the same status, and carries the same weight, as evidence taken from a location within the ACT.
Characteristics of Victorian legislation
For these reasons, in deciding whether Victoria is a participating State, I need to look for provisions in the law of Victoria that are to essentially the same effect as Division 3.3 of the ACT Miscellaneous Provisions Act. Those provisions need not be identical, but to implement the purposes of the legislative scheme, they do need to supplement the powers of ACT courts effectively to the same extent as is achieved for recognised courts by Division 3.3 of the ACT Miscellaneous Provisions Act.
There are some Australian jurisdictions where the relevant legislation matches the ACT legislation very closely, in particular New South Wales (Evidence (Audio and Audio Visual Links) Act 1998 (NSW), Parts 2 and 3). Legislation in other States is also very similar; see Evidence Act 1929 (SA), Part 6C; Evidence Act 1906 (WA), ss 120-132; Evidence Act 1977 (Qld), Part 3A; Evidence (Audio and Audio Visual Links) Act 1999 (Tas), Parts 2 and 3.
The Victorian legislation that was drawn to my attention as “corresponding” was the Evidence Act 1958 (Vic), since 1 January 2010 renamed the Evidence (Miscellaneous Provisions) Act 1958 (the Victorian Evidence Act). The provisions of that Act for the taking of evidence in Victoria by courts of other jurisdictions are rather different from the ACT provisions dealing with that topic, as described in [284] to [285] above, and from the provisions set out in the Acts of other States mentioned in [289] above.
The Victorian scheme is divided between Parts I and IIA of the Victorian Evidence Act. Division 1C of Part I deals with the taking of evidence for foreign and Australian courts:
(a)Under s 9M an application may be made to the Supreme Court of Victoria, on request by a court exercising jurisdiction outside Victoria, for evidence to be obtained in Victoria (a request for evidence sought for the purposes of criminal proceedings is only covered if made by an Australian or New Zealand court).
(b)On such an application, the Supreme Court may make orders for the purpose of giving effect to the other court’s request (s 9N).
(c)Other provisions of Division 1C relate to the privilege of witnesses subject to orders made under s 9N (s 9O), and create an offence of making a false statement otherwise than on oath in giving testimony under a s 9N order (s 9P).
Separately, Part IIA of the Victorian Evidence Act makes provision for evidence to be taken by audio or audiovisual link. Section 42E empowers a court to direct that a person may give evidence or make a submission to the court by audio or audiovisual link, including from a place outside Victoria. There is no recognition of any limit on the power of the court to deal with witnesses giving evidence from outside the State. Nor is there any recognition of the need to support the exercise of equivalent powers, in relation to witnesses in Victoria, by courts of other jurisdictions; such support is presumably intended to be provided through orders made under Division 1C of Part I.
As noted by Spender AJ, the fact that the Victorian legislation is not similar in all respects to the ACT legislation is not conclusive of the question whether the Victorian legislation is corresponding legislation for the purposes of the ACT Miscellaneous Provisions Act. However, the fact that the Victorian legislation does not have the same or even a similar operation to the ACT legislation means that an ACT court purporting to take evidence from Victoria in reliance on a direction given under s 20 of the ACT legislation does not have the support it needs from the Victorian legislation to make that an effective activity. For instance, there is nothing in the Victorian Evidence Act that of itself would enable a person to be prosecuted for perjury in Victoria in respect of evidence given in Victoria to an ACT court (such protection for the ACT court might be available under an order made under s 9N of the Victorian Evidence Act, but it does not seem to arise by operation of any Victorian law as a result of the making of the ACT order).
In further submissions made about this question after the trial, counsel for the prosecution referred me to amendments of the New South Wales legislation made in 2000. The Evidence (Audio and Audio Visual Links) Amendment Act 2000 (NSW) inserted, in the New South Wales Evidence (Audio and Audio Visual Links) Act 1998, a new Part 1A headed “Use of audio links or audio visual links with places in NSW, non-participating States and foreign countries in proceedings in NSW courts”. The Second Reading speech for the Bill introducing those amendments noted that:
This bill amends the Evidence (Audio and Audio Visual Links) Act 1998 which enabled New South Wales to participate in a substantially uniform interstate scheme for the taking or receiving of evidence and the making or receiving of submissions from or in other States participating in the scheme. In July 1997 the Standing Committee of Attorneys General [SCAG] approved a model bill drafted by the Parliamentary Counsel’s Committee which provided arrangements between participating States with respect to the taking of evidence by audio or audiovisual link interstate. Since that time all States and Territories, with the exception of Victoria, which had already enacted legislation to facilitate the taking of evidence by audio or audiovisual links interstate, have implemented the proposal.
These amendments extend the scope of the legislation to facilitate the giving and receiving of evidence in proceedings before New South Wales courts and certain tribunals by audio and audiovisual links from places not covered by the uniform scheme. These are: places in other States, such as Victoria, that are not participants in the uniform scheme; places within New South Wales, other than the place where the court or tribunal is sitting; and places outside Australia. [emphasis added]
Some other States have also addressed the question of taking evidence from Victoria (see for instance the Evidence Act 1977 (Qld), Division 4 of Part 3A, and the Evidence Act 1906 (WA), ss 120-132, in particular the definition of “participating jurisdiction” in s 120). The ACT legislature does not appear to have addressed the question in any way.
Having compared the ACT and NSW provisions, and noting the NSW approach to the Victorian provisions, I find that none of the Victorian legislation drawn to my attention consists of provisions “corresponding” to Part 3 of the ACT legislation for the purpose of the definition of “participating State” in s 16 of the ACT Miscellaneous Provisions Act, and that therefore Victoria is not a participating State for the purposes of Part 3 of that Act. Thus, there was no scope for giving a direction under s 20 of the ACT Miscellaneous Provisions Act.
Is there any other basis for admitting the evidence?
The ACT provisions discussed above do not purport to be the only basis for taking evidence from outside the ACT. Section 18 of the ACT Miscellaneous Provisions Act specifies that:
This part [which includes Division 3.2] is not intended to exclude or limit the operation of any territory law that makes provision for the taking of evidence or making of a submission outside the ACT for a proceeding in the ACT.
It is possible that there is in fact a power under ACT law to admit evidence given from Victoria in the circumstances that applied in this trial. Counsel for the prosecution was given several opportunities to do further research on the question, and was several times encouraged to seek advice from his colleagues in the Office of the Director of Public Prosecutions or more broadly, but only identified Practice Direction No. 1 of 2002 as relevant.
The Practice Direction is relevantly as follows:
Although evidence will normally be given in person, it is open to the parties to consent to evidence being given by telephone or video link from anywhere in Australia or anywhere in the world. Where consent is not forthcoming, a party may apply for an order that the evidence be given by telephone or video link from other parts of Australia or the ACT.
…
In any proceeding before the Court application can be made, or the Court can direct, under the Evidence (Miscellaneous Provisions) Act 1991—Part 3—Use of Audio visual Links and Audio Links that evidence be taken or a submission made by audio visual link or audio link, from a participating State. Similarly a recognised Court may, for a proceeding before it, take evidence or receive a submission by audio visual link or audio link from a person in the Territory.
…
Where the parties consent to the giving of evidence by telephone, practitioners must advise the Associate to the Judges or Master prior to the hearing/trial commencing, that telephone evidence is to be given in Court.
…
If the parties do not consent to the giving of evidence by telephone, application should be made to the Court in accordance with the procedure contained in Order 39, Division 39.2 rules 3-6 of the Supreme Court Rules. This procedure will apply both to audio and audio visual links.
Counsel for the prosecution relied on the statement in the Practice Direction that “it is open to the parties to consent to evidence being given ... from anywhere in Australia or anywhere in the world”. I understand that Practice Directions are issued in reliance on s 20 of the Supreme Court Act). That section confers jurisdiction on the Supreme Court, not legislative power, and I cannot see any basis for treating a Practice Direction, even one identified as “By direction of the Judges”, as of itself a “territory law” for the purposes of s 18 of the ACT Miscellaneous Provisions Act (see [297] above). It is possible that the Practice Direction, while not itself a Territory law, reflects the common law of the Territory, but counsel did not provide any basis on which I could have reached such a conclusion.
Given counsel’s failure, despite what were presumably extensive inquiries on his part, to come up with any basis for permitting the evidence to be taken in the way it was offered, and given the risks I have identified at [284] above in an ACT court receiving evidence not covered by legislation in some way equivalent to Division 3.3 of the ACT Miscellaneous Provisions Act, I see no option but to refuse to admit the evidence. I note that my view on the need for a legislative basis for receiving evidence from interstate applies to criminal proceedings; it may be that in civil proceedings the consent of the parties would be sufficient to permit evidence to be given even if that evidence is not clearly subject to any law effectively underpinning the giving of evidence on oath or enabling the court to deal with the witness for contempt, but for obvious reasons I do not express any conclusions on that matter.
Counsel’s attempts to find a basis for admitting the Victorian evidence were mentioned in court on several occasions after the main part of the trial finished. At one point, nearly three months after the conclusion of the trial, counsel proposed that if the evidence were not admitted he would seek to re-open the prosecution case and recall the witness to give evidence in the ACT, but this was opposed by the defence and it was not pursued.
Other matters
Accused’s medical condition
A, the accused’s wife, told the court that the accused currently suffers a variety of medical conditions, including hypertension, depressive disorder, gout, asthma, obesity, high cholesterol, and early type 2 diabetes. His doctor has described him as a high risk candidate for stroke and heart attack. Defence counsel conceded that this evidence was not tendered by way of an explanation for the accused not giving evidence, and it did not seem to me to have any other relevance in the trial.
Findings
The first count
As already noted, C was a convincing witness, and there was no challenge to her direct evidence of the act of indecency covered by this count. For the reasons explained at [143] to [234] above, I do not consider that C was giving evidence of a “recovered” memory or that for any other reason her evidence was unreliable.
I am satisfied beyond reasonable doubt that the accused committed the act of indecency alleged in the first count in the manner described by C. Despite the evidence canvassed at [64] to [85] above, I am also satisfied beyond reasonable doubt that that event took place at some time between 1 January and 31 January 1987 and that C was at that time above the age of 10 years but under the age of 16 years.
I emphasise that in reaching my conclusion on this charge, I have taken account of all the directions and warnings identified in this judgment as necessary or appropriate. In particular I have considered the warnings and other comments that s 165B of the Evidence Act would have required me to give a jury if this had been a jury trial, and for reasons explained at [254] above I have also considered the evidence on this charge by reference to the Longman warning that “it would be dangerous to convict on [the complainant’s] evidence alone unless …, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, [I was] satisfied of its truth and accuracy”. Having paid full regard to all those directions and warnings, I nevertheless remain satisfied of the truth and accuracy of the complainant’s account of the incident that gave rise to this charge, including the matters she relies on to date the incident, and nothing I have heard in the trial, nor any of those directions or warnings, has given rise to any doubt about that evidence that I would consider reasonable.
I note specifically that in assessing the evidence about the timing of this incident, I have been satisfied by C’s evidence, and the matters she relies on to place the incident in January 1987, and no reasonable doubt has been raised by the evidence of other witnesses canvassed above. This is not the same as accepting C’s evidence simply because the defence has not been able to exclude the possibility of her evidence being accurate, and that latter approach is not the basis on which I have been satisfied beyond reasonable doubt that events took place as described by C.
The second count
I am satisfied beyond reasonable doubt that the incident in the accused’s bedroom took place in the manner described by C. However, in this case I have a doubt, which I consider reasonable, about whether the incident took place during the period specified in the indictment.
Despite the evidence of C and NJ, I consider it more likely than not that there was no family gathering as such at the accused’s home on the day after the twins’ 21st birthday party. In particular I am impressed by the evidence of HM and her mother A that by the Sunday morning after the Saturday night party, HM was suffering from tonsillitis, and that she spent the day in bed. The evidence of these witnesses, like C’s evidence about the particular incidents she alleges, relates to matters that would have made an impact on the witnesses at the time, and their memories of these matters are likely to be reliable.
The absence of a family gathering as such would not necessarily rule out the possibility that C’s family, having left C’s grandmother’s home, might have called in at the accused’s home to say goodbye on the way out of Canberra. However, the family gathering at the accused’s home after the 21st birthday party, like the connection with the heart-shaped cakes, seems to be an important part of C’s memory of the second incident (see [90] above). Because it seems unlikely that the family gathering reported by C took place on the day after the birthday party involving the heart-shaped cakes, I am left in reasonable doubt whether the incident described by C in fact took place on the day after the birthday party with the heart-shaped cakes or whether it took place at the end of a family gathering after another event, for instance the gathering to celebrate the grandmother’s 70th birthday which A said was held on the day after NJ’s wedding in 1988 and which C seems likely to have attended, or a gathering after JA’s wedding which was mentioned in the counselling notes.
If the incident took place when C’s family was leaving the grandmother’s 70th birthday party, or on another occasion again, it cannot have happened within the dates specified in the indictment, and therefore I cannot be satisfied that the second charge has been made out beyond reasonable doubt.
Review of finding on first count having regard to finding on second count
Defence counsel asked me to direct myself to the effect that if I was not satisfied beyond reasonable doubt as to the second count, I should take that conclusion into account in deciding the first count.
The standard trial direction about multiple charges is as set out in [121] above, that is, that there is no need for the verdicts to be the same and that each count must be considered separately in the light of the relevant evidence. There is also a standard direction to the effect that the fact-finder may accept part of a witness’s evidence and reject another part of the same witness’s evidence (see [120] above).
However, the effect of a finding about the credibility of a complainant’s evidence in relation to one count may be taken into account in assessing the complainant’s credibility generally. In R vMarkuleski (2001) 52 NSWLR 82, Spigelman CJ reviewed a large number of Australian cases involving appeals where the jury had reached guilty verdicts on some charges and acquittals on other similar charges, all of which depended on the (usually uncorroborated) evidence of a single complainant. He concluded (at 111) that:
… a reasonable jury is not obliged to have a doubt about the occurrence of some incidents about which it has only a complainant’s uncorroborated evidence, if they have such a doubt about other incidents whenever, in the latter but not the former case, there is evidence contradictory of, or failing to support, the evidence of the complainant. Any conclusion about this matter depends on the full range of relevant circumstances.
Wood CJ at CL in the same case explained (at 126) the standard directions referred to at [313] above.
The kind of direction mentioned, and the reasoning behind it, are matters of common sense which tend, if anything, in favour of an accused so far as they discourage tendency reasoning and invite specific focus on the evidence in relation to each count. Moreover, such a direction allows the jury to bring to their task matters such as the conviction, or apparent persuasiveness, with which complainants describe events of which they have a clear recollection, and the lesser certainty which they may display in relation to other events, of which their recollection may be less clear or where there may be a reasonable possibility of them being mistaken, for example as to dates or places.
This to my mind, reflects the practical, commonsense approach to fact finding which is expected of jurors, as well as the necessity, in some cases, for the prosecution to fit an alleged event within the territorial reach of the relevant statutory provision, or within a specific time frame (as may occur where there have been amendments to the section defining the offence).
In each of these respects, legitimate questions may arise concerning the evidence of a complainant, or a central prosecution witness, which go to the reliability of their recollection or their full awareness of the facts, without in any way reflecting upon their veracity or honesty. Allowance for uncertainty, or imprecision, or lack of persuasiveness in relation to some acts alleged, particularly where the Crown overloads an indictment, does no more than reflect the important difference between reliability and credibility or honesty, a distinction also commonly drawn to the attention of juries.
In my view the decisions which have presumed the demonstration of a fatal blow to the credibility of the complainant, or central witness, where there are different verdicts in a multi-count indictment, have overlooked this distinction …
The comments made by Wood CJ at CL are directly relevant to the instant case. My finding that C’s recollections about the timing of the second incident may be faulty, having regard to the evidence of some defence witnesses, does nothing to undermine her veracity or honesty. Nor, in the particular circumstances of this case, does it seem to have any significance for her evidence about the timing of the first incident. It does not oblige me to find a reasonable doubt about her uncontradicted evidence of the nature of the first incident or about the matters she relies on to fix the timing of the first incident.
Verdicts
Accordingly, I find the accused guilty on the first count, and not guilty on the second count.
Orders
The orders are as follows:
(a)A verdict of guilty be entered in relation to the first count.
(b)A verdict of not guilty be entered in relation to the second count.
I certify that the preceding three hundred and eighteen (318) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 15 April 2010
Counsel for the Crown: Mr D Sahu Khan
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Mr S Whybrow
Solicitor for the accused: Howes Kaye Halpin
Dates of hearing: 1, 2, 3, 30 June, 27 August, 28 September 2009
Date of judgment: 15 April 2010
Appendix A—Relevant statutory provisions
Crimes Act 1900 (ACT)
Section 92J
(1) A person who commits an act of indecency upon, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.
Section 92K
(2) A person who commits an act of indecency upon, or in the presence of, another person who is of or above the age of 10 years but under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
Evidence Act 1995 (Cth)
165 Unreliable evidence
(1)This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a)evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies;
(b)identification evidence;
(c)evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
(d)evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;
(e)evidence given in a criminal proceeding by a witness who is a prison informer;
(f)oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant;
(g)in a proceeding against the estate of a deceased person—evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.
(2)If there is a jury and a party so requests, the judge is to:
(a)warn the jury that the evidence may be unreliable; and
(b)inform the jury of matters that may cause it to be unreliable; and
(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3)The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4)It is not necessary that a particular form of words be used in giving the warning or information.
(5)This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
(6)Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with subsections 165A(2) and (3).
165BDelay in prosecution
(1)This section applies in a criminal proceeding in which there is a jury.
(2)If the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.
(3)The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4)It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.
(5)The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.
(6)For the purposes of this section:
(a)delay includes delay between the alleged offence and its being reported; and
(b)significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.
Legislation Act 2001 (ACT)
7Meaning of Act generally
(1)An Act is an Act of the Legislative Assembly.
(2)An Act of the Legislative Assembly is a law (however described or named) made by the Legislative Assembly under the Self-Government Act.
(3)A reference to an Act includes a reference to a provision of an Act.
Note 1Section 17 deals with former Commonwealth enactments, and former NSW and UK Acts, that have become ACT Acts.
Note 2 Section 100(1) deals with references to particular Acts.
8Meaning of subordinate law
(1)A subordinate law is a regulation, rule or by-law (whether or not legislative in nature) made under—
(a) an Act; or
(b) another subordinate law; or
(c) power given by an Act or subordinate law and also power given otherwise by law.
(2)A reference to a subordinate law includes a reference to a provision of a subordinate law.
13Meaning of statutory instrument
(1) A statutory instrument is an instrument (whether or not legislative in nature) made under—
(a) an Act; or
(b) another statutory instrument; or
(c) power given by an Act or statutory instrument and also power given otherwise by law.
(2) A statutory instrument includes a subordinate law, disallowable instrument, notifiable instrument and commencement notice.
(3) A reference to a statutory instrument includes a reference to a provision of a statutory instrument.
17 References to Acts include references to former Cwlth enactments etc
(1) A reference to an Act includes a reference to a former Commonwealth enactment.
(2) Without limiting subsection (1), a reference to an Act includes a reference to a former NSW Act or former UK Act mentioned in schedule 1.
(3) In this section:
former Commonwealth enactment means a Commonwealth Act or ordinance, a New South Wales Act or Imperial Act that is—
(a)an enactment within the meaning of the Self-Government Act because of that Act, section 34: or
(b)an enactment because of the A.C.T. Self-Government (Consequential Provisions) Act 1988 (Cwlth), section 10(3) or section 12(2) or (3).
Dictionary
Act—see the following sections:
(a)section 7 (Meaning of Act generally);
(b)section 17 (References to Acts include references to former Cwlth enactments etc).
Supreme Court Act 1933 (ACT)
68C Verdict of judge in criminal proceedings
(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3)In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.
7
2
12