R v P a S
[2008] VSCA 172
•11 September 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 199 of 2007
THE QUEEN
v
P.A.S.
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| JUDGES: | NETTLE and ASHLEY JJA and MANDIE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 August 2008 |
| DATE OF ORDERS: | 26 August 2008 |
| DATE OF REASONS FOR | 11 September 2008 |
| JUDGMENT: | |
| MEDIUM NEUTRAL CITATION: | [2008] VSCA 172 |
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CRIMINAL LAW – Conviction – Sexual offences – Whether verdicts unsafe and unsatisfactory – Quality of complainants’ evidence generally – Application for leave to appeal against conviction granted, appeal allowed, verdict and judgment of acquittal entered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble SC | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr J P Dickinson | Slades & Parsons |
| NETTLE JA: |
I have had the advantage of reading in draft the reasons for judgment of Ashley JA and I agree with his Honour.
ASHLEY JA:
On 26 August 2008, having read the written submissions of counsel, and having heard oral argument, this Court indicated its unanimous opinion that the application for leave to appeal against conviction should be granted, the appeal allowed, and in lieu thereof that a verdict and judgment of acquittal should be entered. Orders were made accordingly. The Court indicated that reasons for decision would be published later. These are my reasons for joining in the orders which were made.
P.A.S. (conveniently, ‘the applicant’) was presented in the County Court in May 2007 on seven counts which alleged the commission of sexual offences against two boys aged under 16 years. He pleaded not guilty. He was found guilty by majority on counts 1 and 4. He was acquitted on counts 2, 5, 6 and 7. The jury could not reach agreement on count 3.[1] Following a plea, he was convicted and sentenced on count 4 to three years’ imprisonment and on count 1 to 18 months’ imprisonment. The learned judge cumulated 12 months of the sentence on count 1 on the sentence on count 4. The total effective sentence was thus four years imprisonment. The judge fixed a non-parole period of three years, made a declaration in respect of pre- sentence detention and made certain ancillary orders.
[1] According to the Associate’s note on the back of the presentment, this count was then ‘struck out’.
The applicant sought leave to appeal against conviction and sentence. It is unnecessary to say anything about the grounds of the latter application.
Although there were many grounds of appeal pertaining to the applicant’s conviction, only two grounds – argued together - were ultimately pursued:
12 That the verdicts were unsafe and unsatisfactory.
13 That the verdicts were inconsistent.
In my opinion, ground 12 was made out.
Circumstances
The applicant, a man born 10 June 1966, and so now aged 42, was charged with offences committed in the period January to November 2003. The alleged victim of the first four offences was RB, a boy born 9 July 1988. The alleged victim of the other offences was AB, a boy born 30 June 1994. The boys are brothers. There is a third, still younger, brother, JB. He was born on 6 July 1995. The applicant is a married man. His wife is the sister of the boy’s father, and thus the boys’ aunt.
The broad detail of the alleged offending, after amendment of the presentment permitted at trial, was as follows:
Count 1 Indecent act with or in presence of RB[2] (kissing RB on the lips,
and commencing to masturbate the boy).Count 2 Act of sexual penetration with RB[3] (introduction of applicant’s
penis into the anus of RB).Count 3 Act of sexual penetration with RB (introduction of RB’s penis
into the applicant’s mouth)Count 4 Act of sexual penetration with RB (further instance of
introduction of RB’s penis into the applicant’s mouth).Count 5 Indecent act with or in presence of AB (introduction of RB’s
penis into the applicant’s mouth in the presence of AB).Count 6 Act of sexual penetration (introduction of AB’s penis into
mouth of applicant).Count 7 Second indecent act with or in presence of AB (attempted anal
penetration of AB by the applicant).[2] Crimes Act 1958 (Vic), s 47(1), maximum penalty 10 years’ imprisonment.
[3] Crimes Act 1958 (Vic), s 45(1), maximum penalty 10 years’ imprisonment.
It is necessary to refer to the evidence in some detail in order to explain my opinion that the findings of guilt, and so the convictions, were unsafe or unsatisfactory. I begin with some uncontroversial matters.
At relevant times the applicant and his family (he was, as I have said, married, and there were two children of his marriage) and the B family lived not far distant from each other in Werribee. Often enough in 2002 and 2003, the one family or some of its members would visit the other family. Sometimes, one or more members of the visiting family would sleep over. Since there were 5 children, in all, in the B family and 2 children of the applicant’s marriage, a particular home was likely, if there was visiting, to be quite fully occupied.
When there was sleeping over, arrangements were fairly makeshift. Use was variously made of mattresses, sleeping bags and a trundle bed.
It was uncontroversial, against this background, that the applicant sometimes slept at the B home – particularly if he had been drinking with the boys’ father; and that on some of those occasions - the relative frequency was in dispute - he did so in a sleeping bag on the floor of the bedroom occupied by the B children. Two of those children, it is convenient to note, slept in bunks; and one, RB, slept in a bed. The boys’ bedroom was next to their parents’ bedroom.
The police seized three sleeping bags from the B home, and subjected them to analysis. There was evidence of semen on one of the bags. The applicant was excluded by DNA analysis as the person whose semen it had been.
I next mention the way in which the matter came to the attention of the authorities. In early November 2003, the applicant’s wife complained to RB’s mother that RB had been ‘trying to do things’ to her son BS and to JB. The Department of Human Services (‘DHS’) and the police became involved. JB stated that RB had been ‘trying to root [him] up the arse’. This and related allegations were formalised in an interview conducted with JB on 6 November 2003. They included descriptions of RB’s penis being erect, and of having had ‘goo’ on it. At the instance of DHS, RB was removed from the B home, and went to live with an uncle.
Weeks later, JB raised allegations against the applicant. They were first made to a DHS child protection worker, Ms Vallins. As formalised by a record of interview,[4] they were, in essence, that the applicant had anally penetrated him, to ejaculation, whilst he – JB - had been asleep. This had happened ‘heaps of times’.
[4] On 25 November 2003.
No prosecution, ultimately, was brought in respect of these allegations. It seems that the applicant was presented on certain counts arising out of them, in addition to the counts arising out of allegations later made by RB and AB. But the learned trial judge expressed concern whether the available evidence could possibly sustain findings of guilt; and in response the Crown filed over a new presentment which deleted those counts.
More than 2 weeks after JB’s new account, RB raised allegations against the applicant. Still later, AB did so – he having previously told Ms Vallins and a police officer that he had not been subject to any sexual abuse.
None of the allegations raised against the applicant had been made at any earlier time –for instance, to the boys’ parents. Neither had there been any earlier complaint about ‘uncharged acts’ of which evidence was given by the boys.
Next I should mention evidence – it emerged in a record of interview made by the applicant on 27 January 2004 – that between August 2002 and September 2003 he had been medicated with Zoloft for depression. About that circumstance there was no doubt. A confirmatory medical report was read to the court.
The applicant stated that the medication much affected his libido. He had been unable, for instance, to get an erection. The doctor’s report stated that the applicant had made no specific complaint of impaired libido; but that it was a recognised consequence of such medication; and as well of depression. According to the complainants, however, the applicant had exhibited a voracious appetite for a variety of sexual activities in the period in question.
In the event, there was in the uncontroversial material nothing which would support findings of guilt; but rather, circumstances tending against guilt. In the end, as the prosecutor told the jury in his final address, the Crown case rested upon recorded interviews made by RB and AB (‘VATE tapes’), the accuracy of which the boys adopted at trial.
RB was interviewed twice on 13 December 2003. AB was interviewed on
22 December 2003.
Before going to the detail of the interviews, it should be noted that RB was to some extent intellectually impaired. Whilst no expert evidence was given in that connection at trial,[5] RB’s mother likened her son’s abilities to that of his much younger brothers, ‘if not lower than their level’. She also said that he had attended a special school, and that he was currently on a disability pension. A policeman gave evidence that JB’s allegations against RB had not been pursued because it was believed that RB would not have been able to understand a caution. Again, I think it is not open to a contrary view that the VATE tapes revealed a young man who acted inappropriately at times, and who exhibited a limited capacity to provide a coherent account of events.
[5] There had been a voire dire, directed to the question whether RB, who was then aged nearly 19, should be permitted to give his evidence in chief by a VATE tape. A psychologist, David Sullivan, opined that RB’s intellectual level, when interviewed in late 2005 and early 2006, had been quantitatively less than those of a ten year old child; and that he would not have expected much change in the intervening period. He also made comment about RB’s sexual understanding which seemed to equally relevant to the allegations originally made against him by JB and to the allegations later made by RB against the applicant. This witness did not give evidence at the trial.
RB’s first recorded interview contained no allegation of sexual misconduct by the applicant against RB which was particularised in the presentment. It contained, however, allegations that the applicant would wake up RB’s brothers and then RB; that the applicant had smoked in the house when he was not supposed to; contrarily, that the applicant had not smoked in the house but had done so on the doorstep; that on one occasion – it seems to have been related to the applicant smoking - the applicant said that he would give RB ‘a head job’; that the applicant had done ‘really disgusting things’ to AB, ‘you know, sexual abuse’, whilst he – that is, RB - was asleep; and, after he woke, as he could tell by what he could hear.
The want of relevant allegations, and the unreliability of such allegations as were made, was emphasised, I think, by the fact that the investigating police officer pressed RB quite firmly in an attempt to get him to elucidate his reference to ‘a head job’; and by the fact that RB gave a series of differing accounts as to where, in what circumstances and at what time of the day the applicant had talked about that matter.
Following the first interview, RB spent time with his mother in the police station. She had watched the first interview on a TV monitor. She asked RB why he had not told everything, told him that it was too late now, that he would get into trouble, that the applicant would get away with what he had done, that the policeman had spoken to lots of children about such matters, and that she still loved him, no matter what happened.
Thereafter, RB told the investigating police officer that he wanted to talk with him. That led on to the second recorded interview.
RB first stated, in the interview, that on an occasion when he had been playing a video game in the applicant’s bedroom, he had bumped his head. Later on, the applicant ‘was … sucking my dick and that’. At the time, the applicant’s wife was in the house, and also one of the applicant’s children, with whom RB had been playing. The fellatio had continued for ‘not more than 5 minutes’. This allegation became the subject-matter of count 3.
RB first said that it was not, and then that it was, the first such incident.
Incidents of this kind, RB then stated, had occurred ‘heaps of times’, at the applicant’s home, and at his home.
Asked about the first such incident at his home, RB responded by recounting an occasion when the applicant, who was drunk, had come into his bedroom and had wanted to sleep in the witness’s bed. On that occasion the applicant had ‘tried to kiss me on the lips and all that’. RB said that this occurred after the applicant ‘just had a smoke’, and that he ‘could smell it as he was coming.’ He had told the applicant to keep away from him. That account was part of the subject-matter of count 1, upon which the applicant was found guilty.
It is notable that a question directed to fellatio produced a response that had nothing to do with fellatio. It was also a response which harked back to what RB had said in the first interview about the applicant smoking, a habit then related, in a series of differing accounts, to the applicant allegedly asking RB whether he wanted a ‘head job’.
Having stated, in answer to a direct question, that nothing else happened on that occasion, RB thereafter said that the applicant ‘grabbed my dick’ and ‘he tossed me off’. That was despite RB telling him to stop. RB added ‘I hate it when he does it, and I didn’t want him to do it.’ That alleged misconduct was relied upon by the Crown as the balance of the conduct constituting count 1.
Further according to RB, the count 1 conduct occurred whilst his brothers were in the bedroom, asleep.
Then RB was asked ‘You told me about another time you mentioned in September?’[6] RB responded by saying that there had been a party. His brothers and sisters were there, as well as the adults. But he was in his room. The applicant asked him to stay. He went to the party anyway. He did so because one of his sisters came and asked him to attend. But before he went to the party the applicant ‘was nearly gonna suck my dick and all that.’ He gave no detail to support that assertion which, I add, formed no part of any count. He did say, however, that when at the party, the applicant ‘always blows me a kiss’. This behaviour, as described, seems not to have attracted the attention of anyone else.
[6] I can see no previous reference to an incident at that time. I surmise that it was something said in a so-called ‘disclosure interview’ – as to which, see later.
After a break in the interview, RB said, in answer to a question whether anything else had happened, that the applicant ‘stuck his dick in my bum once’. This had been ‘in bed one night’. But since RB was then, as he said, clothed, it seems that he was not ‘in bed’ in the conventional sense; or else that his account was inconsistent. In any event, he stated that had said ‘no’, that the applicant had persisted, that he had said ‘It hurts, stop’, and that when the applicant did stop, he – RB - had gone out into the lounge room. This incident, which was the subject matter of count 2, had occurred at the applicant’s home, in the bedroom of the applicant’s son. It had occurred whilst other children, including one of his sisters, a brother, and one of the applicant’s sons had been packing up the toys with which they had all been playing.
But then, in a conversation apparently about an incident of anal penetration, RB stated that on this occasion the applicant had ‘sucked my dick again’. This had not been for long, because ‘we could hear his missus.’
That account led on to a question whether the incidents of anal penetration and fellatio had occurred on the same occasion. RB answered ‘I think so’. But asked about the incident of anal penetration he then described, as I apprehend it, a quite different factual situation.
RB said that he had been anally penetrated once. But he gave two accounts of anal penetration, in different circumstances. The Crown relied upon the second of them to make out count 2.
So far as count 4 is concerned, the Crown relied upon RB’s account of fellatio interrupted by hearing the applicant’s ‘missus’. That account, as will now be appreciated, was intimately related to RB’s first account of the incident of anal penetration. The account of one became an account of the other.
I turn to the recorded interview of AB, who was about nine and a half years’ old at the time of interview.
AB began by stating that one night he had pretended to be asleep, but had opened his eyes and seen the applicant ‘trying to – no, stick his penis up [RB’s] bottom.’ On another occasion, at the applicant’s house, the applicant ‘gave [RB] a head job.’ On a third occasion, at the applicant’s house, in the morning after the applicant’s wife and son had gone out, the applicant ‘did it to me as well.’ On a fourth occasion, when he and the applicant had been in the shower, the applicant ‘tried stickin’ his penis up my bottom.’
The first incident which AB described was the incident the subject of count 5. It was a description of an incident of anal penetration of which RB had given no evidence. On RB’s account, there had been a single incident of anal penetration; and it had occurred at the home of the applicant.
AB’s description of what he saw on this occasion involved him saying that he opened his eyes a few times and saw his brother ‘hop in’ the applicant’s sleeping bag, which was left sufficiently open to enable him to see what was happening. He saw the applicant ‘sticking his penis up R’s butt’. His vantage point was the top bunk. He, AB was ‘peeking through, like, a hole in [his] blanket’.
Although AB initially stated that the incident occurred at about 1 am – when there could not have been much light - later in his interview he said that ‘it looked like 8 o’clock in the morning.’
AB’s description of the third incident, which was the subject-matter of count 6, was as follows. He was watching TV. The applicant gave him a ‘head job’. He ‘didn’t even notice it because [he] was … keeping [his] eye on the TV.’ Asked how he knew that the applicant had done this to him, AB said ‘cos I saw my pants down.’
Initially, AB stated that he had not seen what the applicant was doing. But then he said that he ‘did actually peek down.’
As what I have called the second incident, AB said that it had occurred on the same night that he had seen the applicant anally penetrating RB. At the time RB had been on his bed, and he had seen the applicant’s head on RB’s penis. This incident, specifically described by AB, was not the subject of any count.
What I have called the fourth incident, AB said, had occurred at the applicant’s house. No one else had been there. He and the applicant had showered together. The applicant had told him to ‘stand up straight’. Then he had felt the applicant ‘trying to do it’. Contrary to the implication that he had not seen what the applicant had tried to do, later on AB said that ‘like I could see around a bit, and I saw him trying to do it’.
Thus far I have set out the evidence in chief of both RB and AB; but none of the cross-examination. I have done so for three reasons. First, the boys’ evidence in chief was the high-water mark of the Crown case against the applicant. Second, the Crown, although recognising that the jury must give separate consideration to each count, argued that it was more probable that the individual allegations were true because, as it was submitted, they had been made independently by the boys. Third, the applicant relied upon both the sequence of events and what he claimed were very many inconsistencies in the accounts to argue that they were a concoction designed to falsely implicate him and thereby to distract attention from the real offender, RB.
It is obvious enough that there were serious flaws in the boys’ accounts, always allowing that they were young, that RB was intellectually impaired, and that some confusion in the accounts of both boys would have been understandable. But the bald fact is that the two accounts were replete with internal inconsistencies and improbabilities, quite apart from the fact that RB’s first interview had been non- contributory, and that the second interview had followed encouragement and threat of consequences by his mother, a mother whose oldest child had been removed from the family because of his alleged sexual misconduct against one of his siblings - and also, in substance, against one of the applicant’s sons.
I should next refer, though briefly, to some of the cross-examination of RB and
AB.
RB
Cross-examined, RB first agreed that, following the first recorded interview, his mother had told him that there were a few things which he hadn’t told the policeman. She had specified several matters. He remembered that she had said that she would always love him; but that it was too late now, that he would be in trouble, and that the applicant was going to get away with what he had done to the boy. His mother, he said, had been a bit angry.
Second, RB admitted that at the committal hearing he had given an account of events referable to a particular uncharged incident which contrasted sharply with the account given in his first recorded interview.
Third, RB stated, in substance, that there had been some 26 people present in the room where, as he claimed, the applicant had blown kisses at him some 8 or 9 times.
Fourth, the witness agreed that he had to move out of the family home – apparently, ‘for a couple of years.’ He recalled a sequence in which his mother had been upset, that the DHS had come to the house, and that ‘she’ – referring to his mother – ‘told me to leave the house.’ But he did not remember hearing that JB had accused him of sexual misconduct.
Fifth, RB agreed that he had been unhappy at the home to which he had been sent; and that he thought ‘the S. family had got [him] kicked out of home’ - specifically, that the applicant and his wife had brought this about. He denied, however, making false allegations against the applicant out of anger.
Re-examined, RB said, contrary to what he had denied in cross-examination, that he did hear that the applicant’s son, BS, had alleged that he had sexually abused him.
AB
AB, cross-examined, first conceded that it had been his understanding that the applicant and his wife had got AB kicked out of home, that his brother having to leave had made him angry towards them, and that he remained angry.
Second, AB said that he thought he knew that JB and BS had said that RB had been sexually abusing them. He was ‘not sure’ if that had been the reason why RB had to move out of home.
Third, AB stated that he could not remember telling two women that he had not been sexually abused by RB. He denied later telling these women that he had not been sexually abused by anyone.
Fourth, AB said that he knew that JB and RB had made videotapes – his mother had told him that. But he had not been told, he said, what had been said by his brothers.
Fifth, AB agreed that the occasion upon which the applicant had attempted to anally penetrate him had been the first occasion on which he had got into a shower with the applicant; but that there were times after that when he did so.
Sixth, AB denied making up allegations against the applicant because he was angry with the applicant and his family, and because he thought he could get RB home by blaming the applicant for sexual abuse that didn’t happen.
Pausing for a moment, the cross-examination of RB and AB was short The detail of each of the various allegations was not investigated. The cross-examiner appears to have concluded, I think sensibly, that in most cases the boys’ accounts of what had happened were so improbable or internally inconsistent that cross- examination was unnecessary to make the point.
LB
The boys’ mother, LB, was the next witness. I will not repeat what I have already said about some aspects of her evidence.
Concerning interaction of the B and S families, she stated that in 2003 there had been a lot of contact. On Friday nights the applicant would come over, drink and play boardgames. ‘Invariably’ he would sleep over. He did so in the boys’ room, on the floor. Regularly, at weekends, the boys would sleep at the applicant’s home. But she could recall no occasion when just one of her children had done so.
Other than that, she gave evidence that on a night in September 2003 the family, except for RB, had gone to a party. When they had left, the applicant had been at their home. Later, both RB and the applicant had attended the party.
Cross-examined the witness first stated that on a few occasions only the applicant had slept in the lounge room of her home. She was positive that during 2003 he had not slept only in the lounge room. This last answer contrasted, I interpolate, with the appellant’s account given in his record of interview.
Second, Ms B said that she had become aware of AB showering with the applicant, but had thought nothing of it. That was because she knew that the applicant and his wife would shower with both their children.
Third, the witness agreed that the applicant’s wife had initiated matters by saying that RB ‘was trying to do things’ to BS and JB. She had assumed it was sexual things. She had reported this at RB’s school. It was the school which had contacted DHS.
Senior Constable Carter
Cross-examined about JB’s first interview, Senior Constable Carter confirmed that JB had alleged that RB had been ‘trying to root [him] up the arse’, that this had happened ‘about ten times’, and that this had happened in their bedroom. He confirmed also that JB had said that no one else had done anything like that to him.
Questioned about JB’s second interview, the witness said that he had conducted a so-called ‘disclosure interview’ with JB on 25 November 2003, JB’s mother then being present. The next day, a recorded interview had been made.
Senior Constable Carter agreed that disclosure interviews had also been conducted with each of RB and AB before the recorded interviews were conducted. Such interviews were neither recorded or taped. In re-examination he agreed that a disclosure interview involved speaking to someone to seek if there was anything worth making a VATE tape about.
Ms Vallins
The child protection worker, Ms Vallins, gave evidence that on 6 November 2003, at interview, AB had stated that RB was ‘trying to do (rude) things.’ He had been asked ‘did it happen to you?’ and he had answered ‘no’.
On 25 November 2003, she said, she had again spoken to AB. She had noted, that ‘[AB] was clear that he had not been abused by anyone, however he discussed knowledge of [the applicant] encouraging [RB] to perpetrate acts against his brothers’.
Detective Senior Constable Bruce
This witness gave evidence of interviewing the applicant on 27 January 2004. The interview had been recorded. The recording was played to the jury. The applicant denied each allegation of criminal conduct which was put to him.
The witness gave further evidence of having taken possession of three sleeping bags from the B home.
Report of Ms Deborah Scott
Ms Scott, a forensic scientist, reported that testing one of the three sleeping bags showed evidence of semen staining. By DNA profiling, the applicant had been excluded as the source of the semen.
Report of Dr Dean Popa
Dr Popa, the applicant’s general practitioner, reported that the applicant had consulted his practice for depression in August 2002 and thereafter. He had been prescribed Zoloft. The last prescription had been provided (with one report) in July 2003. No side effects had been recorded, but sexual dysfunction is a common side effect of Zoloft. It is also a symptom that could be associated with depression.
Closing addresses
So much for the evidence. The submission for the applicant on this appeal – which, as I have already indicated, I accept – is that upon that evidence the two guilty verdicts were unsafe and unsatisfactory. Because the issue rests upon the evidence, the closing addresses of counsel at trial are of limited importance. At most, they focus attention upon matters which were relied upon to advance the respective cases, and so provide some sort of signposts for evaluating the evidence. It is in that context that I refer to some of the submissions which were advanced.
The prosecutor submitted, inter alia, that –
•
To convict the applicant on counts 1 to 4 the jury in the particular case had to accept the evidence of RB beyond reasonable doubt; and that to convict him on counts 5 to 7 it would need to accept the evidence of AB beyond reasonable doubt. He said, ‘I suppose without their evidence there is no case …’.
• RB presented as an open and guileless young man, and a reliable witness. Both he and AB had passed the test of cross-examination with
flying colours.
•
It made no sense to propose that RB had concocted a story about the applicant. Had he done so, would he not have told it at the first recorded interview?
•
RB’s evidence that the applicant’s breath ‘smelt like smoke’ had the ring of truth about it. Likewise his evidence, in respect of an uncharged act, that the applicant’s nails ‘got stuck in his testicles’.
•
RB could have made additional allegations but had not done so. It was not a question, then, of RB taking every opportunity of advancing false allegations.
• AB had been a reliable and truthful witness. •
AB’s conduct in telling RB (as he said he did) that he should not be doing things with the applicant was not the conduct of a person out to get the applicant.
•
AB’s description of the act of fellatio constituting count 6 ‘smacked of realism.’ Likewise his description of the applicant performing oral sex on RB.
•
The fact, assuming it to be the fact, that RB and AB independently made allegations against the applicant made it more probable that each of the allegations was correct.
• There was some conflict in the evidence of ZB (the boy’s mother) and
the applicant’s evidence given in his record of interview.
Counsel for the applicant submitted, inter alia, that –
•
The jury should not be satisfied that what had been said by RB and AB in the recorded interviews was honest and reliable. That was evident from their content, and was reinforced by consideration of the circumstances in which the interviews were made.
• Such independent evidence as there was ran contrary to the prosecution case.
• None of the charges encompassed in counts 1 to 4 had been revealed in
the first recorded interview of RB.• The second interview had been made after the mother’s chiding; and
in that interview RB had at one stage asked ‘How’s mum’.•
The jury should harbour a concern that RB, an intellectually disabled boy, had made up the allegations in the second interview because he was in trouble, to please his mother, and to satisfy the interviewing police officer, who had routinely pressed him to ‘keep going’.
• RB had given inconsistent evidence about the circumstances of count 1. • RB had given inconsistent accounts about a particular uncharged act. • RB had given inconsistent accounts of the alleged incident of anal
penetration, interwoven with an alleged incident of oral penetration.
• The boys had watched the video-recorded interviews many times.
Their viva voce evidence was conditioned by what they had said when interviewed, rather than being a matter of true recollection.
• Whilst AB’s recorded interview was more understandable than RB’s
recorded interviews, its content was not credible.•
AB’s evidence about the alleged incident constituting count 5 was not credible in itself. Further, the incident was said to have occurred in a bedroom filled with people, a room, moreover, next door to the bedroom of the boys’ parents.
•
In respect of count 6, it was not credible that AB would not have been aware that the applicant had been giving him a ‘head job’. His account in support of that count should be rejected.
• The applicant had admitted showering with AB. In the context that he
did so with his own children, that was unremarkable.•
AB’s allegations against the applicant had been late made, and after he had flatly denied being sexually assaulted by anyone – and in doing so had asserted knowledge of quite different conduct by the applicant.
• The accounts given by RB and AB did not support each other either in
respect of charged acts or in respect of particular uncharged conduct.• There was really no inconsistency in the evidence of ZB and the
applicant as to the frequency with which he slept in the boys’ bedroom, and as to the circumstances which caused him to sleep in the lounge room. ZB had given improbable evidence in an attempt to bolster an aspect of RB’s evidence.
• Dr Popa’s report assisted the applicant. It was unsurprising that the
applicant had not confided his sexual dysfunction to the doctor.• The improbability of the accounts given by RB and AB, of both
charged and uncharged acts, was accentuated by the applicant’s misconduct having supposedly happened in houses where there were adults and other children present.
•
The applicant had done all that he could in denying, in a consistent and logical way, such allegations as were raised against him. He had also agreed to the police taking a DNA sample, and admitted to showering with AB.
• The sequence of complaints by the boys showed a transposition of
conduct which had first been alleged against RB.
• The boys had a reason to make up false allegations against the
applicant. They were angry with him. He and his wife had caused RB
to be removed from the family home.
•
There was no significance to RB’s account of there being smoke on the breath of the applicant on the occasion of the conduct comprehended by count 1. RB knew him to be a smoker.
Principles
The question is whether this Court thinks, upon the whole of the evidence, that it was open for the jury to be satisfied beyond reasonable doubt of the guilt of the accused. In considering that question the Court is not confined to examination of the transcript and exhibits. It must not disregard the consideration that the jury is the body entrusted with primary responsibility for determining guilt or innocence; and it must not disregard such benefit as there may have been, in the particular case, in the jury having seen and heard the witnesses.[7] The question whether a finding of guilt was open to a jury has been said to invite scrutiny whether the jury must, not might, have entertained a reasonable doubt as to guilt.[8]
[7] Jones v The Queen (1997) 191 CLR 439, 450 -451 (Gaudron, McHugh and Gummow JJ).
[8] Libke v The Queen (2007) 230 CLR 559, 596-597, [113] (Hayne J).
Counsel for the applicant submitted that there are cases – and this was one of them – where the quality of the evidence adduced on behalf of the Crown is so poor, and the credibility of a complainant is so reduced, that a jury must have entertained a reasonable doubt of guilt. In such a case, where there is a finding of not guilty on one count, there is no basis for differentiating between the evidence pertaining to that count and the evidence pertaining to another. He cited Jones v The Queen[9] and Eastough v The Queen[10] as instances of cases of that kind.
[9] (1997) 191 CLR 439. See at 453, 455 (Gaudron, McHugh and Gummow JJ).
[10] Court of Criminal Appeal, Western Australia, unreported, 12 March 1998; at 10 (Kennedy J), 51 (Steytler J); compare 41-42 (Pidgeon J).
Counsel for the Crown responded that there was in fact a qualitative difference in the evidence of RB concerning the subject-matter of the various counts, that it had been open, as always, to accept some but not all of a witness’s evidence, and that each case must be considered on its own facts. He cited MFA v The Queen[11] and R v RTM[12] in support of his last proposition, a proposition which is surely correct.
[11] (2003) 213 CLR 606, 616-618, [32]–[35] (Gleeson CJ, Hayne and Callinan JJ).
[12] [2006] VSCA 170, a case in which it was contended that inconsistent verdicts made the guilty verdicts unsafe or unsatisfactory. As to assessment of credibility generally, and particularly in respect of child witnesses, see [31], [35] (Neave JA).
Why the guilty verdicts were unsafe or unsatisfactory
This was a prosecution which rose or fell on the reliability of the evidence of
RB and AB.
The reliability of RB’s evidence was gravely impugned.
First, RB made no allegation in the initial recorded interview which was referable to any of counts 1 to 4. He did, however, refer to an uncharged act, concerning the circumstances of which he gave a series of quite different accounts. His unreliability as an historian was immediately exposed.
Second, RB’s later interview took place in circumstances where he had been placed under some pressure. His mother had chided him. She had been a little angry. He was an intellectually slow youth who had faced complaints of sexual misconduct and who had been removed from the family home. By alleging that he had suffered at the applicant’s hands, he was transformed from offender to victim; or so he might readily have thought.
Third, more than a month elapsed between the time when the issue of sexual abuse was first raised – against him - and the time when RB made allegations against the applicant.
Fourth, RB’s account in respect of the conduct giving rise to count 2 was internally contradictory. I have already said why that was so. In the end, the Crown selected one version on which to go to the jury.
Fifth, I do not agree with the submission of counsel for the Crown that RB’s evidence with respect to count 4 was, in effect, untainted by the unsatisfactory quality of his evidence in respect to count 2. Quite apart from the question whether RB’s evidence was of such a quality that it could not have safely founded guilty verdicts, the allegation which became count 4 grew out of, and was closely related with, the boy’s inconsistent accounts concerning the incident of alleged anal penetration.
Sixth, again putting aside, for the moment, the general quality of RB’s evidence, I reject the submission of counsel for the Crown that the subject matter of count 1, given separate consideration, safely justified a guilty verdict. RB’s account, which emerged in the course of an enquiry about oral penetration, was of two pieces of conduct, separated by his denial – after referring to the first of them – that anything else had occurred. Further, the contention that his evidence had the ring of truth about it because of RB’s reference to the applicant’s breath smelling of tobacco was at least unconvincing. In his first interview, which had nothing to do with the subject matter of count 1, RB gave several accounts of the applicant’s smoking, and as to where he did so. The applicant’s smoking seems to have been a subject of some fascination for RB.
Seventh, quite apart from his evidence concerning the charged acts, RB gave evidence of a particular uncharged act, and of other conduct by the applicant – blowing multiple kisses to him in a crowded room – which was in the one case contradictory and in the other case very improbable. These were additional matters which bore upon the applicant’s credibility, and the quality of his evidence generally.
Eighth, I agree with the submission of counsel for the applicant that this was a case in which RB’s evidence was shown to be of such poor quality, and his credibility was so reduced, that there was not a safe basis upon which the jury, having acquitted on one count and failed to agree on another, could have found the applicant guilty upon two other counts. I have drawn attention, throughout these reasons for judgment, to the various considerations which bear upon that conclusion.
Ninth, even if the allegations made by AB and RB were made independently, and even if that circumstance make it the more probable that the allegations of each of them were reliable, the jury by its verdicts in respect of five of seven counts showed that it attached, at most, scant significance to that circumstance. It is not credible that it should have relied upon such circumstance to assist a conclusion of the applicant’s guilt on the two remaining counts. Nor, in my opinion, could it have done so.
The reliability of AB’s evidence was likewise gravely impugned for at least
four reasons.
First, in its detail, particularly as to the acts which gave rise to counts 5 and 6, it was grossly improbable.
Second, the account which gave rise to count 5 was at odds with the only evidence of anal penetration of which RB gave evidence.
Third, AB’s allegations of criminal conduct by the applicant were made after AB had twice had the opportunity, which he rejected, to say that the applicant had interfered with him.[13]
[13] Even accepting that the focus of questions on the first occasion had been RB, not the applicant.
Fourth, AB had a motive for making false allegations against the applicant. He was a young boy who was angry with the applicant. He perceived the applicant to have been the cause of his older brother being removed from the family home. He knew that RB was said to have engaged in sexual misconduct.
Fifth, it was incomprehensible that AB would have showered with the applicant, after the occasion on which the applicant had attempted to anally penetrate him, if there had in fact been such an attempt.
Apart from the content of the evidence of RB and AB, and the context in which it was given, other evidence tended more or less strongly in favour of there being a reasonable doubt of guilt. In that connection, there was the applicant’s immediately volunteered account of sexual dysfunction in the relevant period, a dysfunction for which there was at least one medical explanation. There was also, though of lesser significance, the absence of any relevant semen staining on any of the sleeping bags.
In all, I cannot accept that such advantages as the jury enjoyed were capable of eliminating the reasonable doubt of guilt which in my view emerged starkly on consideration of the record.
MANDIE AJA:
I agree with Ashley JA.
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| R | v | P.A.S. | 23 | JA MANDIE | ASHLEY | AJA |
| R | v | P.A.S. | 1 | JA ASHLEY | NETTLE | JA |
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