Smith (a pseudonym) v The Queen
[2022] VSCA 129
•30 June 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0241
| JOHN SMITH (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]
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| JUDGES: | MAXWELL P, T FORREST and SIFRIS JJA | ||
| WHERE HELD: | Melbourne | ||
| DATE OF HEARING: | 2 February 2022 | ||
| DATE OF JUDGMENT: | 30 June 2022 | ||
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 129 | ||
| JUDGMENT APPEALED FROM: |
|
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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16 – Whether verdict unreasonable – Credibility of complainant – Improbability – Whether victim’s account improbable – Whether alleged conduct improbably risky – Delay in complaint – Jury well placed to assess improbability – Verdict well open to jury – Leave to appeal refused – M
v The Queen (1994) 181 CLR 487, Robbins (a pseudonym) v The Queen [2017] VSCA 288
considered.
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Counsel
| Applicants: | Mr T Kassimatis QC |
| Respondents: | Mr C Boyce QC |
| Solicitors | |
| Applicants: | Doogue & George Pty Ltd |
| Respondents: MAXWELL P | Ms A Hogan, Solicitor for Public Prosecutions |
| T FORREST JA SIFRIS JA: |
Summary
1 After a trial, the applicant was convicted of the sexual penetration of a 10-year-old girl
(‘KT’).[2] KT was the daughter of his wife’s niece. The offence was committed at the
[2]
applicant’s home, where KT and other members of her family were staying overnight.
2 The single ground of appeal is the unreasonableness ground, that is, that the verdict is ‘unreasonable or unsupported by the evidence’.[3] As so often in cases like this, the
[3]
applicant seeks to renew arguments about KT’s credibility, arguments which were
fully ventilated at trial. His contention is that it was not reasonably open to the jury to
be satisfied that KT’s evidence was credible and reliable. The defence at trial was that
the alleged event simply did not occur.
3 Unusually, the notice of appeal as drawn identifies a specific basis for the
unreasonableness ground, namely, that ‘the victim’s account of the offence was so
improbable as to compel a reasonable doubt’. And that is exactly how defence counsel
addressed the jury, submitting that KT’s evidence ‘amounts to a picture which in and
of itself has that air of improbability, which goes against the grain of common sense’.
According to the final address, KT’s account did not have ‘the hallmarks of a truthful,
genuine and accurate account of events’. This was said to be so principally because of the risk of discovery to which — if KT’s account were true — the applicant had
exposed himself by going into her bedroom at night and digitally penetrating her. It
would have been ‘extraordinary risk-taking behaviour’ for the applicant to have
engaged in.
5 Arguments from improbability are also a recurrent feature of appeals of this kind. But, as has regularly been pointed out, sexual offending against children often takes place in circumstances where there is a real risk of discovery.[4] And these are just the types
of question which a jury is peculiarly well placed to decide, drawing — as defence counsel invited them to do — on their ‘common sense and collective experience of life’.
[4]
6 We respectfully agree with what was said by this Court in Robbins (a pseudonym) v
The Queen.[5] In that case, it was said to be ‘inconceivable’ that the accused would have committed the alleged rape of a child ‘in a crowded tent, with other adults close by’.[6]
Rejecting that argument, the Court said:
In essence, the submissions … sought to impugn the jury’s assessment of what
lies credibly within the realm of human experience. An appellate court should
be very cautious about characterising as unreasonable a jury’s view on such an
issue.[7]
[5]
[6]
[7]
Factual background
7 The prosecution case was that KT and her younger sister had gone to sleep in a downstairs bedroom at the house. They shared a bunk bed, and KT was on the upper bunk. The applicant was alleged to have entered the bedroom during the night, and proceeded to the bedside. He checked on the child in the lower bunk. He then moved one hand underneath the blanket covering KT, and pulled down the waistband of her pyjama trousers.
8 KT described the rubbing of her clitoris, to which she responded with movements of
her legs intended to deter the applicant by making him believe she might wake. KT’s
evidence was that she was pretending to be asleep but stirring. The applicant pulled his hand away but, after KT had been still for some time, he began touching her again. She described the applicant moving and acting quietly and cautiously, as though trying not to wake her.
9 As a result of her movements, KT came to be lying on her back. The applicant removed her underwear and penetrated her vagina with his finger, causing pain and discomfort. After some time, KT shifted again so that she was facing the wall. The applicant desisted and left the bedroom.
10 For some years following the incident, KT continued to see the applicant on occasions when he visited her mother, HT. Until 9 February 2017, she had never told her mother, or anyone else, that she had been sexually interfered with. At that time, HT mentioned the applicant in a text message sent to KT. (He had ceased having any contact with their immediate family around a decade earlier.) When KT spoke to her mother some time later on that day, she disclosed for the first time that the applicant had sexually abused her. HT gave evidence of that complaint, and of the
circumstances in which KT had been at the applicant’s house.
11 The applicant gave evidence in his own defence, and denied the charge against him. He accepted that KT had stayed at his house on an occasion consistent with her evidence, but his evidence was that her mother, HT, had also been present and had slept with her baby on a fold-out mattress. That mattress was in the upstairs part of the house, adjacent to the stairwell. He also gave evidence of the locations of other occupants of the house. He produced photographs of the bunk bed in which KT had
slept and maintained that, because of his short stature, it was ‘difficult’ for him to
reach onto the upper bunk.
‘So inherently unlikely’
12 Senior counsel for the applicant, who did not appear at the trial, helpfully summarised
the appeal submission as being that ‘features of the case rendered the incident … so
inherently unlikely that the jury were compelled or ought to have entertained a
reasonable doubt.’ The submission relied on what were said to be:
• the ‘very high risk’ of detection; • the ‘unusual features’ of KT’s account relating to the physical acts;
• the 16 year delay in complaint; and • the relationship between the applicant and KT, which was said to be notable for the absence of any evidence of prior sexual interest.
13 In relation to the risk of detection, the appeal submission relied on the same matters as had been highlighted for the jury, namely, that there were a number of people in the
house that night; the applicant’s route from his own bed to KT’s room involved him
going past where most of those people were sleeping; before the alleged incident, the applicant had retired to bed with his wife, such that his departure might have been
noticed; KT’s mother was asleep on a mattress near the applicant’s room, and was breastfeeding an infant; KT’s younger sister was in the bottom bunk in the room where KT was sleeping; and the applicant’s brothers were in an adjacent room.
14 According to the submission, what the applicant was alleged to have done went
‘beyond brazen’. Counsel pointed out that, according to KT, the light was on in the
corridor outside her bedroom, and the noise of the door handle moving ought to have been sufficient by itself to have awakened her. These matters were said to demonstrate
that the chances of detection were ‘very, very high’.
As to KT’s account of what the applicant had allegedly done to her, attention was
drawn to the description of the applicant penetrating her vagina with his finger. She
said that his finger had gone in ‘all the way, because I felt his knuckles hit the outside
of me’. Asked in evidence in chief what she felt, KT replied, ‘Pain and
uncomfortableness’. As KT was reminded in cross-examination, this was consistent
with her statement to police three years earlier, where she had said ‘I felt his knuckles
hit against the rest of me as his finger went in the entire way. It was painful and very
uncomfortable.’
According to the appeal submission, it was not possible to reconcile KT’s account of
‘invasive and painful contact … over some time’ and of ‘significant repeated
interference with her genitals’ with her evidence that she had remained silent, had
‘wriggled’ to try and avoid the applicant’s touch, and had pretended to be asleep. Had
3 THE COURT
the events occurred as alleged, it was said, it was much more likely that there would
have been ‘a spontaneous rejection or objection’.
As to delay, what was said to be unusual was that there was ‘no evidence of familial
or social barriers to the complaint over the period of the delay’, nor of ‘a change in
motivation by [KT] to complain’. Instead, as KT confirmed under cross-examination, she had ‘tried to put this out of [her] mind and to bottle it up and not think about it’.
According to the submission, the length of the delay and the fact that KT had not
thought about the matter in the intervening years gave rise to ‘a risk of reconstruction
or distortion’.Consideration
18 In a case like this, where the prosecution case rests on the account given by the victim
of alleged sexual abuse, arguments from improbability have one — entirely proper —
purpose. The objective is to undermine the credibility of the complainant. The essential proposition is a simple one. The defence argues that the complainant should not be believed since the alleged events do not accord with ordinary experience of human behaviour. Such is the risk of detection, so the argument goes, that the jury
should view it as ‘inherently unlikely’ that a person in the accused’s position would
have done what is alleged, in the circumstances described.
19 In the same way, the argument about KT’s reaction to the alleged sexual assault relies on assumptions about how a young girl in KT’s position would be expected to have
behaved. If what KT described had really happened to her, it is said, she would hardly have remained silent and pretended to be asleep. Instead, she would have cried out at the pain, or at the persistence of the touching, and would have called for help. Again, the appeal is to human experience. Since (according to the submission) a 10-year-old in her position would not have behaved as KT claims to have done, her account should not be believed.
Consideration of a complainant’s credibility cannot, of course, be segmented or
compartmentalised. The jury will have watched KT give her evidence in chief and
under cross-examination, before hearing the applicant’s evidence denying that he had any physical contact with her at all. The jury’s assessment of KT’s credibility would — necessarily — have been a continuing assessment, including in light of the
applicant’s evidence and defence arguments from improbability.
21 It follows that these arguments from improbability cannot be considered in isolation.
On the contrary, they must be considered in the context of this Court’s review of the
entire record. The accepted test from M v The Queen[8] requires nothing less. Unless the appeal court has reviewed the whole of the evidence, a doubt which that court
[8]
experiences cannot be said to be — in the M v The Queen sense — ‘a doubt which a
reasonable jury ought to have experienced’.[9][9]
22 We have reviewed the whole of the evidence. As senior counsel for the Director
submitted, a reading of KT’s evidence establishes that it was well open to the jury to
accept her as a witness of truth. Her recollection of the events was clear and generally consistent, and she gave an accurate description of some of the features of the house and of the room where she slept.
23 At the same time, the jury were entitled to view her credibility as undamaged – and even, perhaps, as enhanced — by her candid concession that she had an ‘incomplete memory picture’ of how her underpants came to be taken down. She also confirmed
that she did not recall the exact sleeping arrangements in the room. But she did have a clear recollection of her sister being there. As she said in evidence in chief, and was
invited to confirm in cross-examination, she was ‘thinking very strongly’ about her
younger sister at the time and was grateful that what was happening to her was not
happening to her sister.
As to KT’s account of her response in the moment, we would uphold the submission
advanced on behalf of the Director, that it was open to the jury to conclude, ‘Of course that is what a 10-year-old would do’. Asked how she reacted, KT said, ‘Well, initially I didn’t know what to do so I did the only thing that I could think of, which was move
my legs around to try and get him to stop’.
The applicant paused momentarily, KT said, until, ‘I had settled from moving around
and then he had continued [and] put his hand back under my underwear and, I guess,
played with my clitoris.’ Asked to describe her position, she said:
After a little while, I’m not too sure how long, I did end up on my back, like,
laying on my back. Unfortunately for me, it gave him better access. [He]
ended up putting a finger in my vagina …
Nothing about this account obliged the jury to have a doubt about KT’s credibility.
We should point out that, as happens with surprising frequency in these cases, defence counsel gave KT several opportunities during cross-examination to confirm the details of her account, in this and other respects, before eventually putting to her that nothing of the kind alleged had happened. For example, the following exchange took place:
It was your impression that he was moving his hand in such a way that he would minimise the risk that he was going to wake you up?---Yes.
You only felt one hand on you?---Yeah.
You could see, from where you were, that he wasn’t moving his other hand?
---Yeah.
Even in touching your body, your impression was that he was trying not to
wake you?---Yes.
He was proceeding in a slow and cautious way?---Yeah.
At some point did you move in the bed?---Yes.In moving, what you were trying to do was to give the impression that you had stirred slightly in your sleep?---Yeah.
That you were not trying to give up the impression that you had woken up?
---Correct.
So you froze during the incident and you were pretending that you hadn’t
woken up?---Yeah.
Even though your senses were fully awake and you could perceive what was going on?---Yeah.
27 As to the delay in complaint, it is now well understood that delays of this kind are commonplace when children have been sexually abused. As the jury were directed, in
accordance with s 52(4) of the Jury Directions Act 2015, there is ‘no typical, proper or normal response to a sexual offence’ and ‘delay in making a complaint in respect of a
sexual offence is a common occurrence’.
28 A delay of 16 years is unremarkable. And the reasons which KT gave to explain the delay were perfectly cogent. In evidence in chief, she explained that she had not told anyone because:
I still had in my mind that no one would believe what I was saying. I didn’t have enough trust in anyone to tell them. And just didn’t have the confidence
to speak up for myself.
As noted earlier, what triggered KT’s first disclosure was the text message from her
mother in February 2017 referring to the applicant. She told her mother ‘that
something had happened’ but, when asked to tell her what it was, KT said that she did
not ‘feel comfortable talking about it at the moment’. The first detailed account she
gave was in her statement to police.
30 Finally, we return to the risk of detection. The argument from improbability was, as
we have said, a perfectly proper basis of challenge to KT’s credibility. But, as senior
counsel for the Director submitted, what the applicant was alleged to have done, and the circumstances in which he was alleged to have done it, did not differ materially from other cases considered by this Court, in which there is a real risk of detection. As is illustrated by the proven allegations of repeat offending by a high-profile defendant in Hughes v The Queen, sexual offending does sometimes take place in circumstances carrying a high risk of detection.[10]
[10]
31 Another illustration is provided by Rapson v The Queen.[11] In that case, a priest who
[11]
served as a teacher and later as vice-principal at a boys’ secondary school was
convicted of five charges of rape and eight charges of indecent assault against boys in his charge. One of the indecent assaults occurred in the presence of two other priests and three other boys; two others were committed in the school infirmary in the presence of several other boys; and all five rapes were committed in the office which the offender occupied as vice-principal. On three of those occasions, he had gone to
the victim’s dormitory late at night and ordered him to come to the office.
32 In WEA v The Queen,[12] this Court rejected an interlocutory appeal by a person
[12]
charged with — and subsequently convicted of — numerous sexual offences
committed against five female members of his extended family while they were children. The Court agreed with the trial judge that the (alleged) offending was committed ‘in circumstances of remarkable brazenness’.[13] And, in Morris v The
[13]
Queen[14] a schoolteacher pleaded guilty to representative charges of indecent assault against six pupils in his charge. In a number of instances, the teacher had touched the
[14]
pupil’s genitals while the pupil was sitting on the teacher’s knee reading a book in
front of the class.[15]
[15]
33 Each case must, of course, be determined on its own facts. But what these other cases show is that the existence of a high level of risk in the present case did not, in and of itself, oblige the jury to have a reasonable doubt that the alleged offending took place.
Conclusion
34 Questions of improbability are questions for juries, not for appeal judges. As we have said, they involve the making of judgments about human behaviour, which juries are peculiarly well placed to make. Jurors have the advantage not only of a far wider range of life experience than that of three judges but of being able to draw on each
other’s experiences in the course of their deliberations. There may be, of course, cases
where the improbability of the impugned conduct is so extreme as to compel the reasonable doubt that has somehow eluded the jury. But, as we said earlier, the appellate court should be very cautious before arriving at that conclusion.
35 As the High Court said in Doney v The Queen:
[T]he purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.[16]
[16]
36 The members of this jury were well able to decide whether the arguments from improbability were strong enough to persuade them that they must have a doubt about
KT’s evidence. It is plain from their verdict that they were not so persuaded and, in
our opinion, there was nothing about the evidence that required them to have a doubt.
On the contrary, it was well open to the jury to conclude that the applicant’s guilt had
been proved beyond reasonable doubt.
37 Leave to appeal must therefore be refused.
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8 THE COURT
To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
To ensure there is no possibility of identification of the victim of the sexual offending, the
abbreviation ‘KT’ has been used throughout the judgment.
Criminal Procedure Act 2009 s 276(1).
Cavanaugh (a pseudonym) v The Queen [2021] VSCA 347, [249] (Walker JA, Maxwell P agreeing); Schultz v The Queen [2019] VSCA 179, [93] (Maxwell P, Niall and Weinberg JJA); Danny (a pseudonym) v The Queen [2020] VSCA 8, [88] (Kyrou and Kaye JJA, Croucher AJA).
[2017] VSCA 288.
1 THE COURT
Ibid [136] (Tate and Whelan JJA, Macaulay AJA).
Ibid [139].
2 THE COURT
(1994) 181 CLR 487; [1994] HCA 63.
4 THE COURT
Ibid 494 (Mason CJ, Deane, Dawson and Toohey JJ).
5 THE COURT
Hughes v The Queen (2017) 263 CLR 338, 362 [62] (Kiefel CJ, Bell, Keane and Edelman JJ);
[2017] HCA 20.
(2014) 45 VR 103; [2014] VSCA 216.
6 THE COURT
[2013] VSCA 386.
Ibid [27] (Whelan and Coghlan JJA).
[2016] VSCA 331.
Ibid [53] (Maxwell P and Cavanough AJA).
(1990) 171 CLR 207, 214 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1990] HCA 51.
7 THE COURT
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